NJ Appellate Division Rules Medical Marijuana Patient Terminated After Failing Drug Test Can Pursue Disability Discrimination Claim

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On Wednesday, March 27, 2019, the New Jersey Appellate Division issued a landmark decision in which it reversed a trial court’s ruling that New Jersey law does not provide employment protections for medical marijuana users. This much-anticipated decision marks the first time the Appellate Division has dipped into the waters of analyzing the intersection between the New Jersey Compassionate Use Medical Marijuana Act (“CUMMA”) and the Law Against Discrimination (“LAD”), and it sets the stage for important future rulings in this area. Importantly, the court ruled that the LAD may in fact require employers to accommodate their employees’ use of medical marijuana outside of the workplace and during non-working hours.

In Wild v. Carriage Funeral Holdings, et al., Justin Wild filed a lawsuit against his former employer, Carriage, alleging that his employment had been terminated in violation of the LAD. Wild was hired by Carriage to serve as a funeral director in 2013. In 2015, he was diagnosed with cancer and was prescribed marijuana as part of his treatment regime – a use that is lawfully permitted under CUMMA but remains illegal under federal law. In 2016, Wild was operating a vehicle in the course of his job duties when he was struck by another motorist who ran a stop sign. Wild was injured in the accident and was taken by ambulance to the emergency room. While at the hospital, he advised the treating physician that he had a license to use medical marijuana. The physician responded that it was clear that Wild was not under the influence of marijuana, and, therefore, a drug test was not required. Wild was prescribed pain medication and was sent home. At home, he took the pain medication and used medical marijuana.

Later that day, Carriage advised Wild’s father, who was caring for him, that Wild was required to submit to a drug test. Wild’s father objected, arguing that the test was not necessary given the physician’s determination that Wild was not under the influence at the time of the accident and noting that Wild was sure to test positive given his lawful use of medical marijuana. Carriage nonetheless insisted and, therefore, Wild submitted to a drug test that evening. Not surprisingly, Wild tested positive.

Wild alleged in his lawsuit that his supervisor initially told him that he would be fine but later advised him that “corporate” was unable to handle his marijuana use and therefore, his employment was being terminated. Shortly thereafter, Wild was advised by Carriage via letter that his employment had been terminated, not because of his drug use, but because he failed to provide proper notification to the company per a policy which required employees to advise their supervisor if they were taking any medication that could adversely affect their ability to perform their assigned job duties safely. Wild then filed a lawsuit against the company alleging, among other things, that his termination was in violation of the LAD because he had a disability and was legally treating that disability in accordance with his physician’s instructions and in conformity with CUMMA. The trial judge dismissed the case, finding that CUMMA “does not contain employment-related protections for licensed users of medical marijuana.” Wild appealed.

The Appellate Division rejected the trial court’s analysis. The court acknowledged that CUMMA states that it does not “require … an employer to accommodate the medical use of marijuana in any workplace” but emphasized that this restriction is expressly limited to use in any workplace. While the trial court interpreted that language to mean that medical marijuana users have no employment-related protections, the Appellate Division disagreed, reading the language more narrowly. Ultimately, it found that this language in CUMMA does not destroy any rights or claims that are available to medical marijuana users under the LAD. Importantly, it stated that even though a reasonable accommodation of medical marijuana use is not required by CUMMA, that “does not mean that the LAD may not impose such an obligation.” Given that Wild had never sought an accommodation to use medical marijuana in the workplace or on working time, the Appellate Division found that his claims should not have been dismissed outright by the trial court. As such, the Appellate Division reversed the trial court’s order and remanded the case to the trial court for further proceedings.

While the Appellate Division went so far as to note that the LAD may impose obligations on employees to accommodate an employee’s medical marijuana use outside of the workplace and during non-work hours, it stopped short of actually deciding that issue. Rather, it teed that issue up for the trial court to potentially decide. For that reason, this case is one employers should keep on very close watch. We will certainly do so and will provide further updates as the case progresses.

If you have questions about the Appellate Division’s ruling in Wild or other questions regarding the intersection of New Jersey’s employment and marijuana laws, please contact Laura Link, Esq., or any member of Archer & Greiner’s Labor and Employment Group in Haddonfield, N.J., at (856) 795-2121, in Princeton, N.J., at (609) 580-3700, in Hackensack, N.J., at (201) 342-6000, in Philadelphia, Pa., at (215) 963-3300, or in Wilmington, Del., at (302) 777-4350.

DISCLAIMER: This client advisory is for general information purposes only. It does not constitute legal or tax advice, and may not be used and relied upon as a substitute for legal or tax advice regarding a specific issue or problem. Advice should be obtained from a qualified attorney or tax practitioner licensed to practice in the jurisdiction where that advice is sought.