By: Bruce E. Gudin, Esq.
Marijuana is considered a “Schedule I” drug under the federal Controlled Substances Act, which means that it “has no currently accepted medical use in treatment in the United States.” The use of marijuana for recreational purposes is not yet permitted in New Jersey. Possession of fewer than 50 grams of marijuana is a disorderly persons offense, carrying penalties of up to six months in prison and $1,000 in fines (N.J.S.A. 2C:35-10(a)(4)). Possession of 50g or more is a fourth-degree crime, carrying penalties of up to 18 months in prison and $25,000 in fines (N.J.S.A. 2C:35-10(a)(3)). A drug conviction carries a motor vehicle license suspension of six months to two years (N.J.S.A. 2C:35-16).
Since New Jersey is considering the legalization of cannabis, last year the State attorney general imposed a moratorium on prosecutions for marijuana possession. However, in August 2018 the attorney general directed prosecutors to resume marijuana-related prosecutions but to “exercise prosecutorial discretion to achieve just results.” By and large, in practice the moratorium remains in place.
Under New Jersey’s Medicinal Marijuana Program, patients may purchase up to a maximum of 2 ounces in a 30-day period, as recommended by a physician. Cultivation of cannabis for personal use is not permitted in New Jersey and under New Jersey’s Medicinal Marijuana Program, patients are not authorized to engage in personal cultivation.
New Jersey employers are permitted to enforce “zero tolerance” policies. The New Jersey Compassionate Use Medical Marijuana Act specifically provides that “[nothing in this act shall be construed to require… an employer to accommodate the medical use of marijuana in any workplace” (N.J.S.A. 24:6I-14). In Cotto v. Ardagh Glass Packing CV-18-1037 (D.N.J. 2018), the District Court held that neither the New Jersey Law Against Discrimination nor the New Jersey Compassionate Use Medical Marijuana Act requires an employer to accommodate an employee’s use of cannabis outside the workplace. The plaintiff, who was prescribed medicinal cannabis, argued that his employer was obliged to provide a reasonable accommodation for his disability (i.e., to accommodate his disability by waiving a requirement he pass a drug test before returning to work following an accident). The Court disagreed, ruling that nothing in the Law Against Discrimination or the act that requires an employer to accommodate an employee’s use of a federally illegal substance (including medical cannabis) by waiving its requirement that the employee complete a drug test.
Bruce E. Gudin, Esq. is a partner with the law firm of Ehrlich, Petriello, Gudin & Plaza, P.C. located in Newark, NJ. This is not, nor is it intended to be legal advise. You should consult an attorney or other qualified professional to discuss your particular matter. Bruce can be reached at (973) 643-0040 or on the web at www.epgp-law.com.
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