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Employers: Think Twice Before Retaliating Against Employees for Medical Marijuana Use

Although New Jersey lawmakers cancelled a vote on an adult-use recreational cannabis bill recently, medical cannabis use gained some support following a ruling from the Appellate Division of the Superior Court of New Jersey that an employer’s failure to accommodate medical marijuana use by an employee constituted a valid basis for an employment discrimination claim.

Plaintiff alleged the following in his legal complaint against his employer: he began working with Carriage Funeral Holdings in 2013 as a licensed funeral director. The job required him to direct funerals, engage in visitations, perform the embalming process, “cosmetize” the diseased, prepare death certifications, conduct religious services at gravesites, and drive the funeral home’s hearse and other vehicles. In 2015, he was diagnosed with cancer and prescribed medical marijuana as part of his treatment pursuant to the New Jersey Compassionate Use Medical Marijuana Act, N.J.S.A. 24:6I-1 to -16.

While driving a funeral vehicle at work one day, plaintiff was struck by a car that ran a red light and transported to the emergency room. He informed his treating physician that he had a license to possess medical marijuana, and the physician found it clear that plaintiff was not under the influence of marijuana, so no blood test was required. Because the accident was considered work-related, his medical marijuana use was disclosed to his employer.

The funeral home insisted that plaintiff could not return to work without submitting to a blood test. Plaintiff went to an urgent care to receive such a test, but the physician said that testing would be illegal and yield positive results due to how long marijuana stays in one’s system in addition to the pain killers plaintiff had taken after the accident. He underwent a urine/breathalyzer test instead, the results of which were never released to him.

In the following weeks, plaintiff was told that “corporate” was unable to “handle” his marijuana use and that he was being terminated due to the test’s “detection of drugs in his system.” Later, “corporate” advised plaintiff in a letter that he was terminated not due to his drug use, but because he failed to disclose his medication use, which could adversely affect his ability to perform his job duties.

Carriage referenced a workplace policy that required an employee to advise his immediate supervisor if he was taking any medication that may adversely affect his ability to safely perform his assigned duties. Plaintiff’s mother also received a telephone call stating that she heard plaintiff was fired for being “a drug addict.” Plaintiff’s mother then called Carriage and was relayed the same message about her son being a drug addict.

Plaintiff then filed this lawsuit, alleging violations of the Law Against Discrimination (“LAD”) for disability discrimination, failure to accommodate, perceived disability discrimination, aiding and abetting on the part of Carriage employees, defamation, and intentional interference with a prospective economic gain. During trial court proceedings, plaintiff claimed Carriage could not lawfully terminate his employment without violating the LAD because he had a disability and was legally treating that disability in compliance with his physician’s orders and the Compassionate Use Act.

But the trial court judge dismissed plaintiff’s legal complaint, acknowledging that while the Legislature declared that an authorized medical-marijuana user could not be criminally prosecuted, it also stated that nothing in the Compassionate Use Act required accommodations for medical marijuana users. Therefore, the trial court judge held that a LAD claim could not go forward.

Giving the plaintiff every reasonable inference of fact alleged in his legal complaint, the Appellate Division noted that the Compassionate Use Act was enacted to decriminalize the use of medical marijuana in light of modern medical research findings. The court acknowledged that the Act did not mention anything that would require an employer to accommodate the medical use of marijuana in any workplace.

Yet the plaintiff alleged a disability that qualified his use of medical marijuana, and the Law Against Discrimination clearly made it unlawful to discharge or discriminate against an individual in terms, conditions, or privileges of employment based on that individual’s disability unless the nature and extent of the disability reasonably prevented him from performing his job duties.

Just because the Compassionate Use Act did not require accommodations for medical marijuana users did not mean that other legislation could not impose such a requirement. That provision did not create or destroy rights and obligations, and therefore, did not immunize employers from obligations already imposed elsewhere like in the Law Against Discrimination. “It would be ironic indeed if the Compassion Use Act . . . permit[ted] . . . discriminating without compassion.”

After resolving the relationship between the Compassionate Use Act and the Law Against Discrimination, the court then looked to see if plaintiff met the preliminary requirements to make a case for disability or perceived disability discrimination under the LAD. This meant that the plaintiff had to allege that (1) he had a disability or Carriage perceived that he was disabled; (2) he remained qualified to perform the essential functions of the job and was performing at a level that met Carriage’s expectations; (3) he was subject to an adverse employment action because of the disability or perceived disability and (4) Carriage thereafter sought a similarly qualified individual.

The Appellate Division found that plaintiff successfully pled all of these elements. The court also noted that plaintiff was not seeking an accommodation for his use of medical marijuana in the workplace; he alleged that he would only use it “offsite” or during “off-work hours.”

The case’s decision joined others from courts in Connecticut and Arizona who have ruled similarly in favor of employees in employment disputes over medical marijuana. But there have been cases in New Jersey as well with unfavorable rulings for medical marijuana users and employees. One decision held that an employer was not required to accommodate a forklift operators’ medical marijuana use and waive a positive drug test result, notwithstanding a doctor’s note from the employee’s physician allowing for the operation of machinery while using the medical marijuana prescription.

And another case in New Jersey dismissed a wrongful termination suit filed by an accountant who failed a drug test because he used medical marijuana for chronic back pain. In that case the court found that the employee’s notice to his employer that he was in the medical marijuana program did not constitute a proper request for accommodation of a disability.

Notably, this case does stand for the notion that additional protections are being afforded to medicinal marijuana patients, and if the vote on recreational marijuana happens anytime soon, questions for employers with respect to employee marijuana use will only continue to surface.

Employers who seek to terminate or take other adverse action against employees due to drug test results consistent with medical marijuana use should consider the legal ramifications of doing so following this case’s outcome.

COPYRIGHT © 2020, STARK & STARKNational Law Review, Volume IX, Number 98


About this Author

Gene Markin Attorney Stark & Stark Law Firm

Gene Markin is a Shareholder in Stark & Stark’s Complex Commercial, Intellectual Property, and Cannabis Litigation Groups where he concentrates his practice on complex litigation matters involving copyright protection and infringement, trademark and trade dress infringement and enforcement, trade secret litigation, false advertising, domain name disputes, unfair competition, class actions, fraud and consumer fraud, shareholder and partner disputes, breach of contract, cannabis business disputes, cannabis intellectual property matters, cannabis insurance coverage...