Marijuana Moment: New Jersey AG Says Company Illegally Discriminated Against Medical Marijuana Patient By Rescinding Job Offer

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New Jersey’s attorney general took legal action this week against an employer who allegedly violated state law by discriminating against a medical marijuana patient by rescinding a job offer after he tested positive for THC.

“New Jersey’s civil rights laws require that employers discuss how to develop accommodations that will allow employees with disabilities to perform their duties,” Attorney General Matthew J. Platkin (D) said in a statement. “But this employer cut off all communication, refusing to even try to work with their candidate. Their failure to act violates the law, and we will not tolerate that.”

Platkin’s office said on Tuesday that its Division on Civil Rights issued a finding of probable cause against Delaware-based Prince Telecom. The finding is a precursor to prosecution, though first the case will go to conciliation, where the parties have a chance to settle the matter voluntarily.

The case arose after a job applicant at Prince Telecom completed a drug screening in October 2020. Several days later, according to the finding of probable cause, a human resources representative told him the test came back positive and that Prince was rescinding the job offer.

In response, the applicant told the company he was a registered medical marijuana patient.

“My failed drug test is due to a medical condition which I explained to the medical and testing facility,” he said, according to the five-page complaint. “I believe there are protections afforded me under law. I have never been in this situation before. So, I don’t know what to do at this point. Can someone please reach out to discuss?”

The company’s representative allegedly didn’t respond. About a week afterward, the applicant spoke with the HR director, who allegedly said a second drug test would be necessary. The applicant said that test would also likely come back positive, “because he uses medical marijuana for a medical condition,” the AG’s finding says.

At that point, the company allegedly stopped responding entirely, ignoring a separate letter to Prince’s chairman as well as a later follow-up text message.

Prince later told New Jersey’s Division on Civil Rights that reasonable accommodations for the applicant would be impossible, writing that the cable installation technician position for which he’d been offered a job “is a safety-sensitive position in which the safety risks are further heightened because technicians work alone and are not supervised in the field.”

“There is no reasonable accommodation that would enable Claimant to perform the essential functions of his job,” the company argued. “The only possible accommodations would be to eliminate essential job functions or to pay two technicians to do the job of one, neither of which is reasonable.”

In the new finding, however, the director of the Division on Civil Rights said there’s nevertheless probable cause to believe that Prince Telecom violated anti-discrimination protections.

The state’s medical marijuana law “does make clear that its provisions ‘shall not be construed to permit a person to,’ among other things, ‘operate, navigate, or be in actual physical control of any vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of marijuana,” the finding document acknowledges. But the statute also “makes it ‘unlawful to take any adverse employment action against an employee who is a registered qualifying patient based solely on the employee’s status as a registrant’ with the Cannabis Regulatory Commission.”

Both the state’s general Law Against Discrimination (LAD) and the state’s specific cannabis-related laws provide certain employment protections to medical marijuana patients.

“Here, there is sufficient evidence to credit Complainant’s allegation that Respondent failed to accommodate his disability in violation of LAD,” says the finding of probable cause. “There is also sufficient evidence to credit Complainant’s allegation that Respondent refused to hire Complainant based on disability.”

“In short, Respondent summarily determined that Complainant’s disability—and the treatment for his disability—automatically disqualified him from employment,” the document continues, noting that the company never provided evidence that the applicant regularly used marijuana during the day. “Accordingly, there is sufficient evidence to conclude that Respondent refused to hire Complainant based on disability.”

Sundeep Iyer, director of the AG office’s Division on Civil Rights, said in a statement that the agency is committed “to ensuring that all employers are aware of their obligations under the law.”

“Our laws provide strong protections against discrimination based on disability. Those protections mean that employers can’t discriminate against employees based on their treatment for a disability, including their use of marijuana to treat or alleviate the symptoms of a disability,” he said.

The press release from Platkin’s office notes that not only LAD but also the state’s medical and adult-use cannabis laws protect job applicants from discrimination.

“Under the Jake Honig Compassionate Use Medical Cannabis Act, employers cannot take adverse employment action against an employee based on the fact that the employee is registered as a medical marijuana user with the Cannabis Regulatory Commission,” it says. “And under the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), an employee or applicant cannot be subject to adverse action by an employer solely due to a positive drug test for cannabis.”

Platkin’s office noted, however, that CREAMMA was passed after the incident involving Prince Telecom, meaning it does not apply in the current dispute.

The attorney general has taken a comparatively bold approach to protecting employment protections for legal cannabis users in New Jersey. In 2022, Platkin told law enforcement officials statewide that state law does not allow them to fire police officers who use cannabis off duty—a decision that led to a lawsuit from local Jersey City officials. A police union has asked for the suit to be dismissed, called it “pure hogwash.”

Platkin revised that guidance the following year, generally barring screenings for marijuana in most circumstances following the state’s enactment of legalization.

Last November, meanwhile, a separate lawsuit from two Jersey City police officers who were fired for testing positive for marijuana claimed that the city’s policy of punishing law enforcement for off-duty cannabis use is merely an effort by Mayor Steven M. Fulop (D) to “win over more conservative voters needed for his gubernatorial campaign.”

Back in 2019, a former Amazon warehouse employee filed suit against the corporate behemoth, alleging that he was terminated after testing positive for THC and subsequently requesting a disability accommodation for his anxiety disorder to allow him to use cannabis in accordance with state law.

Read the full finding of probable cause against Prince Telecom below:

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Photo elements courtesy of rawpixel and Philip Steffan.

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