Can My Employer Fire Me For Using Prescribed Medical Marijuana?

In recent years, New Jersey has joined the growing number of states legalizing marijuana for medical purposes.  Indeed, in 2019, the New Jersey legislature has signaled a willingness to expand the number of licensed marijuana dispensaries in response to growing demand. 

Medical marijuana use has proved a boon for patients seeking effective alternatives for managing conditions as varied as migraines, anxiety, and Crohn’s.  But what does it mean for the employer/employee relationship – especially when many companies expect workers to pass random drug screenings as a condition of their employment? Doesn’t refusing to accommodate an employee’s medical marijuana use amount to unlawful disability discrimination?

Currently, the answer to the question depends upon where and when an employee seeks to engage in medical marijuana use.  It also depends upon how courts choose to interpret the interplay between two governing laws: The New Jersey Compassionate Use Act (“CUA”) and the New Jersey Law Against Discrimination (“LAD”).

The CUA and LAD Do Not Require Your Employer to Excuse You From Drug Screening

The state law authorizing the use of medical marijuana, the CUA, expressly states that the Act should not “be construed to require…an employer to accommodate the medical use of marijuana in any workplace.”

Based on that language, New Jersey federal courts have been unwilling to read the CUA as imposing additional obligations on employers, above and beyond their current obligations under the LAD.  And the LAD only requires employers to make a “reasonable” accommodation of a worker’s disability – practically speaking, that’s an accommodation that (1) isn’t too expensive or risky to the employer, and (2) ensures the worker can still perform the essential functions of his or her job.

As such, if you work at a job with randomized drug testing, you should not expect the CUA/LAD to exempt you from testing due to your medical marijuana use.  The 2018 NJ district court case of Cotto v. Ardagh Glass Packing, Inc. is a perfect example.  

There, the plaintiff was a forklift driver who was terminated by his employer after he informed management that he could not pass a mandatory drug test due to his use of prescribed marijuana for pain management following an injury.  The plaintiff sued the employer under the LAD, claiming the employer’s refusal to waive the drug test amounted to disability discrimination. As part of his claim, he even provided a note from his doctor stating that he was able to operate the forklift while on his prescription marijuana.  Nevertheless, the court found for the employer, holding that nothing in the CUA required the employer to waive its requirement that the plaintiff pass a drug test to confirm he was able to perform the essential functions of his job.

The LAD Offers Some Protection For Medical Marijuana Use Outside of the Workplace, Outside of Work Hours

Despite the foregoing, it would be a mistake to assume that the law offers no employment protections for medical marijuana use.  The 2019 case of Wild v. Carriage Funeral Holdings proves that under certain circumstances, New Jersey workers will be allowed to sue their employers for disability discrimination arising from medical marijuana use.

So what, exactly, are those “circumstances”?

In Wild, the plaintiff was a funeral home director, charged with duties such as embalming, preparing death certificates, and driving a hearse when needed.  He took prescribed medical marijuana following his cancer diagnosis in 2015, but only at home and after-hours. In fact, his employer was entirely unaware of his marijuana use until the plaintiff, while driving for a work-related funeral, was hit by another vehicle and sent to the hospital for emergency care.  The plaintiff reported his marijuana use to the hospital doctor, thus indirectly apprising his employer.

The employer confronted the plaintiff about his marijuana use, and the plaintiff assured the employer that it was medically prescribed, and that he only took the marijuana at home and after work each night.  Nonetheless, the employer terminated him, and the plaintiff sued, alleging disability discrimination under the LAD.

Initially, a lower court threw the plaintiff’s lawsuit out on the basis that “the Compassionate Use Act does not contain employment-related protections for licensed users of medical marijuana.”  However, the appeals court reinstated the lawsuit, holding that the CUA didn’t relieve the employer of its obligation to provide a reasonable accommodation under the LAD.  Importantly, the court noted that the plaintiff did not seek an accommodation allowing him to take his marijuana at work, during work hours, but rather off-site and off-work.

So what’s the upshot of the Wild decision?

You may have a claim against your employer for disability discrimination, if your employer terminates you for, or refuses to accommodate you for, using medical marijuana:

• At home
• After hours
• When you have a job that doesn’t involve the kind of health, welfare and safety risks that entail mandatory drug screening (i.e., likely a desk or light duty job, or a job that doesn’t involve teaching or caring for minors).

Please note, too, that the Wild decision only allowed the plaintiff’s claim to proceed in court.  The merits of the claim, and the final outcome, will have to be litigated.

UPDATE:  On March 10, 2020, the New Jersey Supreme Court affirmed the appellate court’s decision in Wild and allowed the plaintiff’s case to proceed to litigation.  In doing so, the Supreme Court was careful to point out that the Compassionate Use Act expressly states that it “shall not be construed to permit a person to: a. operate, navigate or be in actual physical control of any vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of marijuana.” (emphasis added).  The Court also noted this language will “impact” the plaintiff’s request for the accommodation of medical marijuana use under the LAD.

Given the foregoing, failure-to-accommodate claims for medical marijuana use will be on very shaky ground indeed if they are brought by workers whose jobs involve operating vehicles or heavy machinery.

In Conclusion: Expect The Courts to Decide These Issues

Given the relative newness of medical marijuana use in New Jersey, and given how many workers are employed in industries requiring them to be drug-free, it’s a sure bet that our courts will be taxed with deciding when allowing an employee’s marijuana use is “reasonable” and when it is not.  In this uncertain environment, all determinations will be very fact-specific and dependent on the circumstances of each individual case. If you’re experiencing issues with your employer in the meantime, please don’t hesitate to reach out to our office to see how we can help.