August 19, 2019

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EMPLOYER ALERT: In New Jersey’s Latest Medical Marijuana in the Workplace Ruling, Employers Must Consider All Applicable Employment Laws, Not Just the Most Obvious One

Yesterday, in Wild v Carriage Funeral Holdings, Inc., the Appellate Division reinstated a medical marijuana user’s lawsuit who had claimed that he was terminated for using medical marijuana outside of the workplace.  The plaintiff, who was undergoing treatment for cancer, was lawfully using medical marijuana for pain under the Compassionate Use Medical Marijuana Act.

In granting dismissal in favor of the employer, the lower court held that the Compassionate Use Medical Marijuana Act did not unconditionally protect the use of marijuana by employees and further, did not insulate employees from compliance with the terms and conditions of an employer’s reasonable zero-tolerance/drug free workplace policy.  However, in reversing and remanding the lower court’s decision, the Appellate Division ruled that the matter had been dismissed prematurely, by not taking into consideration other employment laws that may afford protection to the plaintiff, such as the New Jersey Law Against Discrimination (“LAD”), noting in particular that an employer still has a duty to not discriminate based on a disability, and still has a duty to reasonably accommodate a known medical issue such as the one in this case, cancer.  The Appellate Division reinstated the complaint to allow the plaintiff an opportunity to prove disability discrimination and failure to accommodate violations under the LAD.

This ruling does nothing to disrupt the current state of the law, which is that employers still have the right to control what happens in the workplace and may continue to take steps to ensure a safe and healthy workplace for all.  As this case demonstrates, issues involving medical marijuana continue to evolve as lawful medicinal marijuana employees are afforded more and more workplace protections.  And although a vote on recreational marijuana was just recently withdrawn for failure to garner enough support in the legislature, you can be certain it will be back, creating more questions for employers with respect to marijuana use by employees outside of the workplace.

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About this Author

Jay S. Becker, Giordano Law Firm, Labor & Employment, Cannabis Law, Corporate Labor Relations Employment Law and Litigation
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Jay, chair of the Labor and Employment Practice Area, devotes his practice to labor relations and employment law and litigation on behalf of management. His experience includes conducting trials, hearings, arbitration and mediation sessions; responding to state and federal administrative agency charges; collective bargaining; drafting employment-related corporate documents such as restrictive covenants, employee handbooks, employment agreements, various stock and compensation plans, and separation/severance agreements. He counsels employers on all employee relations issues including, but...

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Ari G. Burd, Shareholder, Giordano Law Firm, Labor & Employment, Cannabis Law, Health Care
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Ari devotes his time to assisting and defending employers with regard to traditional employment issues. He frequently counsels employers for compliance with New Jersey laws and has extensive transactional and litigation experience.

Ari has litigated employment matters throughout the state, having made appearances in almost every Superior Court in New Jersey, as well as before both Federal District Courts in New Jersey and the Federal and State Courts in New York.  These actions have involved a diverse range of claims such as wrongful discharge, discrimination, harassment, retaliation, enforcement of non-compete/restrictive covenant provisions and wage and hour disputes.  Ari also assists businesses during all stages of Equal Employment Opportunity Commission (EEOC), Division of Civil Rights (DCR), Wage and Hour and Department of Labor (DOL) investigations.  In addition to his litigation experience, Ari regularly assists clients with the preparation and review of employment related documents, such as employment agreements, policies and handbooks.

Ari has spoken on numerous occasions to New Jersey businesses regarding employment related issues and is the co-author and regular contributor to the New Jersey Labor and Employment Law Blog, which provides news and updates for employers regarding all labor and employment matters throughout New Jersey.

In addition to his labor and employment law practice, Ari also assists the firm's health care clients, providing counsel to hospitals, physicians, and physician groups in matters, generally involving employment, contract and HIPAA issues.

732-741-3900