Update on Medical Marijuana in the Workplace

Apr 1, 2020 | Written by: Sharon M. Flynn, Esq. | Share

On March 10, 2020, the New Jersey Supreme Court in Wild v. Carriage Funeral Holdings, Inc., et al., (A-91-18) (082836), affirmed that a medical cannabis patient can assert a claim for employment discrimination under the New Jersey Law Against Discrimination (NJLAD) for an adverse employment action based on an employee’s off-site medical cannabis use. 

By way of history, the plaintiff, Justin Wild, claimed that after he began working for Carriage Funeral Holdings, Inc., (“Carriage”) in 2013 as a licensed funeral director, he was diagnosed with cancer and prescribed marijuana by his physician pursuant to the New Jersey Compassionate Use Medical Marijuana Act (“the Compassionate Use Act”).  In 2016, while working a funeral, the vehicle that the plaintiff was driving was struck by another vehicle that ran a stop sign. Following the accident, the plaintiff was hospitalized and advised his treating physician that he had a license to possess and use medical marijuana. The treating physician opined that it was clear that the plaintiff was not under the influence of marijuana and declined to conduct a blood test; however, the Director of Carriage required that the plaintiff undergo a blood test before returning to work.   Several days later, Carriage informed the plaintiff that his employment was "being terminated because they found drugs in [his] system." The plaintiff also received a letter from his former employer stating that he had been terminated because he failed to disclose his use of medication, which might adversely affect his ability to perform his job duties.  According to a Carriage policy, “employees must advise their immediate supervisor if they are taking any medication that may adversely affect their ability to perform assigned duties safely.”

Thereafter, the plaintiff filed a lawsuit alleging that the defendants violated the NJLAD because he had a disability (cancer) and was legally treating that disability (off-site and off-work hours) in accordance with his physician’s directions and in conformity with the Compassionate Use Act. The defendants filed a motion to dismiss the plaintiff’s complaint.  The trial Court determined that the Compassionate Use Act “d[id] not contain employment-related protections for licensed users of medical marijuana” and that the adverse employment action had been taken as a result of a positive drug test and a violation of Carriage’s drug use policy.  The trial Court further noted that the Compassionate Use Act did not require employers to make accommodations for medicinal marijuana patients on the job. Accordingly, the trial court granted the defendants’ motion. 

The plaintiff appealed this decision and the Appellate Court reversed it, stressing that the plaintiff only sought an accommodation that would allow his continued use of medical marijuana outside of work.  In reaching its decision, the Appellate Division analyzed the Compassionate Use Act’s interplay with the NJLAD.  The Court noted that the Compassionate Use Act expressly declares that nothing about it "shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace." The Court further noted, however, that the plaintiff did not allege that he sought an accommodation to use medical marijuana in the workplace. Rather, he alleged that he sought an accommodation that would allow his continued use of medical marijuana "off-site” or during "off-work hours.” 

The Supreme Court affirmed the judgment of the Appellate Division and concurred that the plaintiff’s NJLAD claim was sufficient to survive the defendant’s motion to dismiss the plaintiff’s complaint. The Court further found that there is no conflict between the Compassionate Use Act and the NJLAD.  The Act authorized the plaintiff’s use of medical marijuana outside of the workplace, and the Act also allowed the plaintiff to assert a NJLAD claim for disability discrimination and failure to accommodate following the termination of his employment.  

The Supreme Court did note, however, that two provisions of the Act could affect a NJLAD discrimination or failure to accommodate claim. First, the Court made it clear that the Act does not require employers to accommodate the medical use of marijuana in any workplace.  Second, the Court stated that the Act does not permit an employee to “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 Court noted that if the circumstances giving rise to a NJLAD disability discrimination claim implicate either one or both of those provisions of the Act, a plaintiff’s NJLAD claim may be adversely impacted.

If you have an employee who has advised that he or she uses medical cannabis, you should consult with counsel before taking any adverse employment action.  Alternatively, if you have advised your employer that you use medical cannabis and an adverse employment action has been taken against you, you should consult a lawyer to learn your rights.  Our office would be happy to assist you.