Employers Must Accommodate Off-Duty Medical Marijuana Use Under New Jersey Law

Labor and Employment Law Alert

The New Jersey Appellate Division held that an employer who refused to accommodate the out-of-office use of medical marijuana for cancer treatment violated the New Jersey Law Against Discrimination (NJLAD).  It held that while the New Jersey Compassionate Use Medical Marijuana Act’s (“CUMMA”) does not require employers to accommodate medical marijuana users in the workplace, it does not foreclose an action under the NJLAD when the employee was suffering from a disability and was not seeking to use marijuana at work. Wild v. Carriage Funeral Holdings, Inc., Docket No. A-3072-17T3 (App. Div. Mar. 27, 2019).

In Wild, the plaintiff, who had previously been diagnosed with cancer and prescribed medical marijuana as part of his treatment, was, while working, in a car accident and taken to an emergency room. At that time, the plaintiff, disclosed to the hospital that he had a license to use medical marijuana and, because he did not appear to be under the influence of marijuana, the treating physician did not perform a blood test. The employer, however, required plaintiff to take a blood test before returning to work, at which point, of course, he presumably tested positive, although the test results were not in the record. He was then fired because of the drug test, although the employer claimed that it fired plaintiff because he violated a policy requiring employees to inform it if they are taking medications that could adversely affect their job performance.

The trial court dismissed plaintiff’s NJLAD and defamation claims, observing that nothing in the MMCUA “require[s] . . . an employer to accommodate the medical use of marijuana in any workplace.” N.J.S.A. 24:6I-14. The Appellate Division reversed, noting that the plaintiff alleged a NJLAD claim: (1) he was disabled because he had cancer; (2) he was able to continue to work as a funeral director; and (3) and his employment was terminated. As for the CUMMA, the Court found that while the New Jersey legislature did not intend to expand employee’s rights, it also did not intend to destroy any rights already available under the NJLAD. The Court held that plaintiff pleaded that he sought a reasonable accommodation not to use medical marijuana in the workplace, but to accommodate his legal use of medical marijuana outside of his job. Plaintiff did not seek to circumvent the CUMMA because he was not asking for an accommodation to use medical marijuana “in any workplace.” Instead, he was seeking a reasonable accommodation for his legal use “off-work hours.”

Bottom Line:

The Wild decision certainly makes things more difficult for employers, especially when it comes to determining whether medical marijuana users are under the influence in the workplace. It is no longer enough that such an employee test positive. The employer will now need “reasonable cause” to send that employee for testing and determining that the employee is under the influence. By “reasonable cause,” we mean that the employee looked like he was under the influence based on objective observation, such as slurred speech or blood shot eyes or other indicators.

Of course, New Jersey employers remain free to ban the use or possession of marijuana on the job. They may still send employees for drug tests and are not precluded from discharging them if they use marijuana in the workplace or are under the influence during the work day, even if he smoked medical marijuana before work. CUMMA does not prevent employers from disciplining or terminating impaired employees, as the law specifically prohibits anyone—even someone with a prescription—from operating any vehicle or stationary heavy equipment while under the influence of marijuana. N.J.S.A. 24:6I-8.

Also keep in mind that nothing in the Wild decision will change anything for those employees who are covered by the U.S. Department of Transportation’s (“DOT”) regulated drug testing program, such as, for example, truckers and bus drivers. In this regard, the D.O.T.’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result. Indeed, if any position requires a commercial driver’s license (CDL), then employers must abide by the Omnibus Transportation Employee Safety Act of 1991, which requires that all employers drug test employees whose duties require a CDL.