A Capehart Scatchard Blog

NJ Appellate Court Weighs in On Medical Marijuana Use and The Workplace

By on April 10, 2019 in Court Rulings with 0 Comments

Recently, I have been getting more and more questions in my counseling practice regarding what employers must do when an employee or prospective employee advises that he/she is a medical marijuana user.

Unfortunately, there is a dearth of legal authority that a lawyer can presently consider in providing advice on this topic.  While New Jersey’s Compassionate Use Law decriminalizes marijuana for medicinal purposes, it is silent on the issue of job protection for such users. One thing that the law does say however is that employers need not accommodate worksite use of the drug by an employee.  But what about non-working time (or off site) use of marijuana, and how should that use affect the employee’s ability to continue working for an employer, especially one that bars illegal drug use among its employees under its workplace policies?

In late March, 2019, the New Jersey Appellate Division issued a significant decision that attempted to address what an employer’s legal duties are in the situations I just posed.  The decision analyzed how the Compassionate Use Law and the New Jersey Law Against Discrimination (“LAD”) potentially could interact with one another, and what consequent requirements might exist for employers by virtue of the interplay between these laws.

The Plaintiff in Wild v. Carriage Funeral Holdings filed a lawsuit alleging that his employment had been wrongfully terminated in violation of the LAD because of his then disability. Wild had been hired by Defendant Carriage Funeral Holdings in 2013 to serve as a funeral director. In 2015, Plaintiff was diagnosed with cancer. He was ultimately prescribed marijuana as part of his on-going cancer treatments. While such use is currently lawful under the state’s Compassionate Use Act it continues to be illegal under federal law.

Wild was involved in a work related auto accident in 2016 that was not his fault. Plaintiff was injured and taken by ambulance to the emergency room for treatment of his injuries. After arriving at the hospital, Plaintiff advised the treating physician that he had a license to use medical marijuana. The emergency room physician determined that Wild was not under the influence of marijuana, and concluded that a drug test was not required. After receiving prescribed pain medications, Plaintiff was sent home where he used both the pain medication and authorized medical marijuana.

Upon returning home, Wild’s father, who was caring for him at the time, was advised by the Defendant that Plaintiff was required to submit to a drug test due to his involvement in the auto accident. Wild’s father objected, disputing that the test was necessary given the physician’s determination that Wild was not under the influence at the time of the accident. Wild’s father also mentioned that Plaintiff was sure to test positive given his recent use of medical marijuana. Despite Plaintiff’s father’s protestations, the employer demanded the test be taken.  After Wild submitted to the drug test that evening, it not surprisingly was positive for drug use.

According to Plaintiff, after the test results were received, a work supervisor initially advised him that despite the positive result he would be “fine,” but then that same supervisor subsequently advised Plaintiff that Defendant’s “corporate” objected to Wild’s marijuana use. Plaintiff was thereafter advised by letter that his employment had been terminated, not because of his drug use, but because he purportedly failed to provide proper notification to the company under its workplace policy which required that employees advise their supervisor about the taking of any medication that could adversely affect their ability to perform their assigned job duties safely.

In his lawsuit, Wild claimed, among other allegations, 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 the Compassionate Use Law.  The trial judge dismissed the case by way of an early motion to dismiss, finding that the Compassionate Use Law did not provide job protections for medical marijuana users based, in part, on the fact that the law does not compel on site accommodation of medical marijuana use by employees.

On appeal, a three member panel of the New Jersey Appellate Division held that Wild’s complaint was improvidently dismissed under the very liberal legal standard for allowing cases to avoid early court dismissal.  The Court determined that the Plaintiff’s pleading in the case sufficiently alleged the necessary legal elements of a disability claim to allow it to avoid an early case dismissal.  Accordingly, the dismissal of the case was vacated, and the matter remanded to the trial court for further proceedings. 

In the course of ruling that the dismissal of Wild’s case was not appropriate, the Appellate Division also rejected the argument raised by the Defendant that the absence of an affirmative obligation to accommodate off site employee use of medical marijuana under the Compassionate Use Act itself meant that such an accommodation was never required of an employer.  In rejecting this argument, the Court raised the possibility that under other already existing laws, such as the LAD, that accommodation obligation might in fact exist.  The Court noted in this regard that the lack of such an affirmative requirement in the Compassionate Use Law “does not mean that the LAD may not impose such an obligation.” Since Plaintiff never requested 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 so early in the case by the trial court. However, given the procedural posture of the case, the Court also never had to address specifically whether the LAD in fact legally required employer accommodation of an employee’s off site non-working time use of medical marijuana.

So what does this case mean for employers? On the one hand, the appellate court’s decision could be narrowly construed as merely holding that a case brought by a medical marijuana user who was fired for such drug use was improvidently dismissed too early in the ligation process given New Jersey’s liberal court rules that prevent dismissal in a case’s early stages in all but the most limited of circumstances.  Conversely, on the other hand, the case could also equally be read more broadly to be a declaration that, in some situations, the LAD may in fact require employers to accommodate employee use of medical marijuana outside of the workplace and during non-working hours.        

In light of the fact that the Court in Wild did not hold expressly that offsite use of medical marijuana is a mandated accommodation under the LAD, the issue remains an open one, and the progress of this case will be closely monitored to see how this issue develops at the trial court level. Nonetheless, given the legal uncertainty surrounding this potential accommodation issue, employers should proceed with extreme caution in this perilous area, where the need for competent legal counsel is now even more paramount than ever.



About the Author

About the Author:

Mr. Smith is Co-Chair of Capehart Scatchard's Labor & Employment Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitrations, drug testing, and employment related contract issues.


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