Pub. 20 2021-2022 Issue 2

N E W J E R S E Y C O A L I T I O N O F A U T O M O T I V E R E T A I L E R S I S S U E 2 | 2 0 2 1 22 new jersey auto retailer MARIJUANA continued from page 19 must engage in a dialogue with the employee that is par t of the medical marijuana program. This dialogue is designed to explore reasonable accommodations that al low employees to perform the essential duties of their job. Typical ly this includes tolerating off-duty use. Assessments are made on a case- by-case basis, and reasonableness depends on circumstance. At a minimum, dealerships should be aware current case law makes it clear that summari ly terminating medical marijuana users, without f irst engaging in this process, is likely to lead to liabi lity. Workers’ Compensation and Medical Marijuana The New Jersey Supreme Court recently considered the use of medical marijuana as a treatment through an employer’s workers’ compensation plan. The case, Hager v. M&K Construction , stands for the proposition that employers may be required to reimburse employees the cost of medical marijuana following an employee’s worksite injury. In the Hager case, the plaintiff became disabled following a workplace accident. He spent years undergoing treatment and submitted to multiple surgeries to address spinal injuries. Given the persistent back pain, his treatment also included use of prescription opioids for pain management. Eventually, and due in part to the side effects of the opioid use, the plaintiff’s physician prescribed medical marijuana. Eventually, a workers’ compensation trial convened to determine the nature of his work-related injuries and entitlement to benefits. During the trial, significant testimony was presented relating to the plaintiff ’s surgeries, opioid reliance, and subsequent medical marijuana prescription. The plaintiff testified that the change in medication allowed him to wean himself from the opioids. The use of medical marijuana also allowed him to manage his pain and muscle spasms. The court, recognizing the plaintiff had limited treatment opinions, concluded that marijuana was the clearly indicated option. As a result, it ordered the employer to reimburse, among other things, the cost of the medical marijuana. On appeal, the Appellate Division found in the plaintiff ’s favor but also determined employers can comply with New Jersey’s medical marijuana laws without also violating federal law. This is because nothing in the medical marijuana laws required the employer to engage in the unlawful conduct of possessing, manufacturing or distributing medical marijuana. It likewise decided that the employer was not entitled to be treated as a private health insurer ( and therefore exempt from reimbursing the cost of treatment ). On April 13, 2021, the New Jersey Supreme Court upheld the lower courts’ findings. The Court rejected arguments that workers’ compensation insurers should be treated like private health care providers or governmental medical assistance. The Court determined that workers’ compensation is not a private health care plan. Had the legislature intended to create an exception, it could have, considering the exceptions written into the medical marijuana statutes. The Court was similarly unpersuaded by arguments that reimbursement for medical marijuana violated the Federal Controlled Substance Act. The Court highlighted that the State’s medical marijuana laws operated within the parameters of federal law. Pointing to federal policies prohibiting interference with state medical marijuana programs, the Court determined Congress intended for state programs to survive and f lourish. Read together, with the Controlled Substance Act’s prohibitions, the Court determined it possible to comply with State and Federal law at the same time and rejected the conspiracy or aiding and abetting theories argued by the defendant. Recognizing that the use of medical marijuana is uncommon for workers’ compensation purposes, the Court also examined the Legislature’s intent in its statutory schemes before ordering reimbursement for treatment. The Workers’ Compensation Act may, in some instances, cover palliative care. The New Jersey medical marijuana laws included chronic pain as a qualifying condition for program eligibility. According to the Court, the legislature’s intent in these statutory schemes would be undermined by simply exempting workers’ compensation carriers from providing medical marijuana as a reasonable and necessary treatment. In reaching this conclusion, the Court reiterated the principle that reasonableness and necessity require competent medical testimony about the treatment’s symptom reduction or its ability to restore function. In this case, the plaintiff had two options. One required the continued use of opioids, which caused the plaintiff to suffer side effects. The other option – medical marijuana – allowed him to conquer an opioid addiction despite his significant injuries and chronic pain. The credible medical testimony presented during the trial detailed the plaintiff’s need for the medication and benefits to an alternative treatment. This allowed the Court to conclude the treatment was reasonable and necessary. The Court’s April 13, 2021 ruling highlights the continuing evolution of cannabis law and its impact on the workplace. In this decision, the Court established an expectation that medical marijuana may, depending on circumstance, be reasonable and necessary for treatment under workers’ compensation. In doing so, the Court highlighted the State’s ongoing commitment to medical marijuana as a treatment for those meeting the program’s requirements. Viewed in concert with the New Jersey constitutional amendment governing adult recreational use of cannabis, dealerships should expect more individuals to explore marijuana use for medicinal and recreational purposes. At this juncture, it is recommended that dealerships review their policies regarding reasonable accommodations for individuals with disabilities and their workplace drug and alcohol policies to ensure compliance with this rapidly evolving industry. Jennifer Roselle, Esq. is counsel in the Genova Burns Cannabis, Labor, Human Resources Counseling and Compliance Practice Group. She can be reached at jroselle@genovaburns.com .