Can You Prohibit Tenants from Smoking Pot in Their Apartments?

Supreme Court Permits Workplace Medical Marijuana Case to Proceed; Will This Affect Landlords?

medical marijuana

An Appellate Court in New Jersey ruled last year that in the employment context, even though the medical marijuana law indicates that no part of it should be interpreted to require an employer to accommodate the use of medical marijuana “in the workplace”, that provision does not undermine the applicability of the Law Against Discrimination as it relates to the requirement of an employer to make a reasonable accommodation for a person who is disabled to accommodate the employee’s use of it outside of the workplace. In that case, the court ruled that an employee could pursue his claim against the employer for firing him after he failed a blood test which confirmed the remnants of marijuana in his system. He alleges that it was prescribed as part of his treatment for cancer, but only used off the work premises and not during work hours. The New Jersey Supreme Court has now affirmed that decision. This is not a surprising result because after this case was decided in the Appellate Division, the legislature amended the Compassionate Use Medical Cannabis Act to specifically provide that employers are prohibited from taking any adverse action against an employee solely based on the employee’s status as a medical marijuana patient.

The medical marijuana law is silent on what a landlord can or cannot do when dealing with authorized medical marijuana users on the rented premises. The last draft of the recreational marijuana bill included a clause inserted in the proposed law at the request of NJMHA lobbying, which would not require landlords to tolerate marijuana use on their premises. That law did not pass and the legislation authorizing the constitutional amendment on this subject matter next November is silent on this issue.

So, can you prevent your tenants who can verify a disability and provide a prescription for medical marijuana from using it on the premises? Probably not. You can regulate smoking of any kind (even prohibit it), and certainly can otherwise prohibit smoking marijuana. That is still illegal and still a basis for eviction under the provisions of the Anti-Eviction Act. The question is whether or not you are required to make an accommodation for those who can provide these proofs to you and not enforce your lease or the law to facilitate their “treatment”? This has not been decided by a court in New Jersey (yet), in the landlord tenant context, but it is clear how the courts are going to interpret LAD in these circumstances – LAD requires accommodating medical marijuana.

If you cannot prohibit it, can you regulate it? This is also unclear. It is my understanding that in New Jersey, medical marijuana is currently not only available in flower form for smoking, but it is sold in lozenges, shakes and topical syringes. Accommodations for the handicapped only have to be “reasonable”. One can argue (in the absence of any controlling case law) that a landlord would be on more solid footing to take the position that it can try to simultaneously accommodate a disabled tenant’s needs while at the same time addressing the concerns of neighbors who also have to call the rented premises their home (just eat or drink it- or slap it on (???) no one will be adversely affected.) You can try to keep your “no smoking” status – it would also allow you as a housing provider to respect the concern of other residents who have to tolerate the odor and potential ill effects of secondhand smoke creating a risk for their family and children, where applicable. None of this is clear now. It is recommended that in response to a request for an accommodation, after verification with all appropriate documents (which can be required once an accommodation is requested), you open a dialogue with any tenant who has the requisite proofs who is attempting to avoid your prohibition of pot, or even a broader smoking prohibition, to ascertain why they cannot be accommodated with a middle ground that can be identified. An across-the-board ban now would be somewhat risky based upon this recent Supreme Court case.

By Christopher J. Hanlon, Esq.,

Should you have the need for legal counsel in this area, please contact me at chanlon@hnlawfirm.com or call toll-free (855) 376-5291.