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New Jersey Law Does Not Require Employers To Accommodate Medical Marijuana Users With Drug Test Waivers

A federal court in New Jersey has held that neither the New Jersey Compassionate Use Medical Marijuana Act (“NJCUMMA”) nor the New Jersey Law Against Discrimination (“NJLAD”) compels an employer to waive its requirements for employees to pass drug tests, even when those drug tests include testing for marijuana. Cotto v. Ardagh Glass Packing, CV-18-1037 (D.N.J. August 10, 2018).

Plaintiff Cotto was employed as a forklift operator and injured himself by hitting his head on the roof of the forklift. His employer required him to take and pass a post-accident drug test as a condition of employment. He told his employer that he could not pass the drug test because he takes several medically-prescribed drugs, including medical marijuana as well as narcotics for pain management. The employer told him that they could not allow him to continue working there unless he tested negative for marijuana, and he remained on indefinite suspension as a consequence of not satisfying this condition of employment. Cotto argued that this requirement constituted disability discrimination in violation of the NJCUMMA and the NJLAD. In effect, Cotto sought the “reasonable accommodation” of requesting the employer to waive the requirement that he pass a drug test for marijuana. The employer moved to dismiss his claims.

The Court began its analysis by stating that marijuana continues to be illegal under federal law. New Jersey enacted the NJCUMMA in 2010 for the purpose of protecting medical marijuana patients from criminal prosecution and other civil penalties. However, the NJCUMMA explicitly provides that “nothing in this act shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace.” The Court further noted that the NJCUMMA is “less expansive than several other states” because there are no employment protections for medical marijuana users in the statute. Additionally, the Court stated that “most courts have concluded that the decriminalization of medical marijuana does not shield employees from adverse employment actions,” citing court decisions in California, Colorado, Michigan and New Mexico.

Turning to the NJLAD, the Court predicted that the New Jersey judiciary would conclude that the NJLAD does not require an employer to accommodate an employee’s use of medical marijuana with a drug test waiver. As a result, Cotto’s complaint failed to state a claim and his lawsuit was dismissed.

Jackson Lewis P.C. © 2020National Law Review, Volume VIII, Number 227


About this Author

Kathryn J. Russo Disability Lawsuits Attorney Jackson Lewis Law firm Alcohol Testing Lawyer

Kathryn J. Russo is a Principal in the Long Island, New York, office of Jackson Lewis P.C. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws.

Ms. Russo assists clients with workplace problems involving drugs and alcohol, and gives advice about compliance with all pertinent drug and alcohol testing laws. She prepares substance abuse policies to comply with all federal drug and alcohol testing regulations (including all agencies of the U.S....