New Jersey Appellate Division Allows Medical Marijuana Bias Claim To Proceed

By Douglas Lipsky

The New Jersey Appellate Division recently issued a ruling to the effect that the New Jersey law Against Discrimination (LAD) may require employers to accommodate employees who use medical marijuana under the state’s Compassionate Use Medical Marijuana Act (CUMMA). Given the far reaching effect this ruling could have on employers with drug-testing policies, employers should consider reviewing their drug-screening policies with the help of an experienced disability accommodations attorney.

The Backdrop

Justin Wild, a funeral director at Carriage Funeral Holdings, had been prescribed medical marijuana, as permitted under CUMMA, which he used on non-working hours to manage pain and cancer-related complications. Carriage Funeral only learned of Wild’s medical marijuana use after he was involved in a motor vehicle accident while on duty and was treated at the hospital.

Carriage Funeral subsequently required Wild to undergo a drug test. The test came back positive and Wild was terminated for failing to inform his supervisor that he had been taking medication that might adversely affect his ability to perform is duties. Wild sued for disability discrimination and failure to accommodate under the LAD.

The trial court dismissed the claim, ruling that because medical marijuana use is barred under federal law, Carriage Funeral had a legitimate business reason to fire him. The court also held there are no employment-related protections for licensed medical marijuana users under CUMMA, which states in part, “nothing in this act shall be construed to require…an employer to accommodate the medical use of marijuana in any workplace.”

The Appellate Division reversed, holding that, despite the accommodation language in CUMMA, (1) LAD may require an accommodation for medical marijuana use and (2) an employer’s obligation to do so must be assessed on a case-by-case basis. In particular, the court found that while CUMMA does not require employers to make workplace accommodations for medical marijuana users, CUMMA also does not impact rights that might be available under the LAD.

The Appellate Division also found that Wild had sought an accommodation for his off-duty medical marijuana use once it had become known and that Wild’s discrimination and accommodation claims are fact-based questions that the trial court failed to consider. In other words, employers may have an obligation to accommodate an individual’s off-duty, off-site use of medical marijuana under the LAD.

Why This Matters

At this juncture, it remains to be seen whether the court’s in New Jersey will find that the LAD provides workplace protections to medical marijuana users. Nonetheless, employers in New Jersey may eventually be required to revise their drug screening policies to accommodate lawful medical marijuana users.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.