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One Toke Over the Legal Line Can Result in Employee Firing

By on August 22, 2018 in Policy with 0 Comments

Ever since New Jersey’s Compassionate Use Medical Marijuana Act was passed in 2010, one of the issues that employers have wondered about is whether an employee who used medical marijuana could be terminated for violating an employer’s drug and alcohol testing policy.  That question has been the subject of many court decisions throughout the country in other states with similar compassionate use laws with varying results.  On August 10, 2018, we finally received the first decision here in New Jersey addressing this important question.

In Cotto v. Ardagh Glass Packing, Inc., No. 18-1037 (D.N.J. August 10, 2018), a federal judge of the United States District Court for the District of New Jersey held that an employer was not obligated under either the Compassionate Use Act or the New Jersey Law Against Discrimination to carve out an exception to its drug testing policy for the benefit of a medicinal marijuana user so that the employee could remain employed with that company.   Following a minor workplace accident, Plaintiff was required to take both breath and urine tests under the Defendant’s drug testing policy which required testing after every workplace accident.  He refused and the company placed him on a long term indefinite suspension until he compiled with the testing policy requirement.  Plaintiff refused to take the test because he knew he would fail due to his use of both Percocet and medical marijuana for long term pain management.  Prior to the accident, the Plaintiff performed his job without incident.  While the company did not have an issue with the Percocet use, it was unwilling to carve out an exception for medical marijuana use under its drug testing policy.

The district court held that there was no legal obligation on the part of the employer to allow for the marijuana use, in part, because while the Compassionate Use law shields employees from state criminal prosecution, federal law still makes marijuana use illegal, and an employer because of that could ban marijuana use amongst its employees without running afoul of anti-disability discrimination laws since the prohibition is directed not towards any disability but against the use of a federally prohibited drug prescribed for the treatment of the condition.

So, what is the implication of the Cotto decision for employers?  Because no New Jersey state court had ever addressed this issue, as a federal court, the judge in Cotto had to predict how a New Jersey state court would address the presented issue in Cotto.   What does that status mean?  Well, it means that, even with this decision in Cotto, a state court judge in a case presenting the same issue could rule differently than what happened in this case, and there are several such cases now awaiting decision in the New Jersey state court system.  So, while it is always positive to have a court decision that provides some direction on what to do in these kinds of situations, until a state court judicial ruling occurs, employers should still proceed with caution in how it addresses these types of issues, and it is best to seek legal advice before taking any type of adverse action against a medical marijuana user.  Also, if you have not done so yet, employers are wise to review their drug testing policies and decide in advance whether they wish to treat medicinal marijuana use like any other prescribed drug so you the employer are prepared in case the situation ever needs to be addressed in your workplace.

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Ralph R. Smith, III, Esq.

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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