Are NJ Employers Required to Accommodate Medical Marijuana in the Workplace?

Are NJ Employers Required to Accommodate Medical Marijuana in the Workplace?

­The Supreme Court of New Jersey recently heard oral arguments in a case being closely watched by employers and the cannabis industry. The issue in Wild v. Carriage Funeral Holdings is whether New Jersey employers are required to accommodate an employee’s use of medical marijuana.

Termination for Medical Marijuana Use

Plaintiff Justin Wild sued his former employer, defendant Carriage Funeral Holdings, Inc. (Carriage), under the New Jersey Law Against Discrimination (NJLAD). His suit alleges that Carriage unlawfully terminated him for using medical marijuana, which is permitted by the Compassionate Use Medical Marijuana Act (CUMMA).

While working for Carriage as a licensed funeral director, Wild was involved in a motor vehicle accident. At the hospital, Wild advised a treating physician that he had a license to possess medical marijuana. The physician responded that “it was clear [plaintiff] was not under the influence of marijuana, and therefore no blood tests were required.” Carriage learned of Wild’s medical marijuana use following the accident. Wild informed his employer that he used marijuana to alleviate his cancer pain, but only did so during non-work time. Carriage required Wild to take a blood test prior to returning to work, in response to which Wild explained that he would test positive because of the prescribed marijuana and pain killers he was prescribed following the accident.

In a June 3, 2016 letter, Carriage advised Wild he was being terminated. The letter stated that the reason was not Wild’s marijuana use, but his failure to disclose his use of medication that might adversely affect his ability to perform his job duties. According to a Carriage policy, “employees must advise their immediate supervisor if they are taking any medication that may adversely affect their ability to perform assigned duties safely.” 

Wild subsequently filed suit. Among other allegations, Wild claimed Carriage could not lawfully terminate his employment without violating the NJLAD, despite the results of his drug test, because he had a disability (cancer) and was legally treating that disability, in accordance with his physician’s directions and in conformity with CUMMA. 

Appellate Division Rules in Favor of Medical Cannabis Accommodation

The trial court dismissed the suit, concluding that CUMMA “does not contain employment-related protections for licensed users of medical marijuana.” However, the Appellate Division reversed. “[W]e reject the essential holding that brings this matter here and conclude that the Compassionate Use Act’s refusal to require an employment accommodation for a user does not mean that the Compassionate Use Act has immunized employers from obligations already imposed elsewhere,” Judge Clarkson Fisher Jr. wrote. “It would be ironic indeed if the Compassionate Use Act limited the Law Against Discrimination to permit an employer’s termination of a cancer patient’s employment by discriminating without compassion.”

In reaching its decision, the Appellate held that CUMMA’s refusal to require an employment accommodation for a medical marijuana user does not mean that the statute has immunized employers from obligations already imposed under other statutes, such as the NJLAD. “The Compassionate Use Act neither created new employment rights nor destroyed existing employment rights; it certainly expressed no intent to alter the LAD,” Judge Fisher explained. “Just as the Compassionate Use Act imposes no burden on defendants, it negates no rights or claims available to the plaintiff that emanate from the LAD.”

New Jersey Supreme Court Hears Oral Arguments

The New Jersey Supreme Court granted Carriage’s appeal and agreed to consider the following question: “Does the New Jersey Compassionate Use Medical Marijuana Act — which declares that ‘nothing’ in the Compassionate Use Act ‘require[s]’ an employer to accommodate a medical marijuana user, N.J.S.A. 24:6I-14 — preclude a claim by an employee against an employer based on, among other things, the Law Against Discrimination?”

During oral arguments on February 4, 2020, much of the debate focused on the interplay between the NJLAD and CUMMA. The National Employment Lawyers Association of New Jersey, New Jersey Attorney General’s Office, and American Civil Liberties Union of New Jersey (ACLU-NJ) all argued in favor of Wild, arguing that medical marijuana patients should be entitled to pursue claims for disability discrimination under the NJLAD.

“A clear message must be sent to employers that, absent compelling circumstances, they cannot dictate their employees’ access to the medications that alleviate their pain. Every one of us has the constitutional and common law right to make our own medical decisions, and those decisions are ours and nobody else’s to make,” the ACLU-NJ argued.

With regard to what type of accommodation would be required, the AG’s office emphasized that it must be reasonable. “The statute has to do with what is required of the employer. CUMMA created for the first time an entitlement to possess lawful marijuana for medical use,” Mayur Saxena of the state AG’s office stated. “It does not include a requirement for the employer to allow use of marijuana in the workplace. An employer must provide a reasonable accommodation but not one that causes undue hardship.”

Several of the justices raised questions about what type of disclosure employees may be required to make. “These two statutes seem to hinge on communication between the employer and employee—that there needs to be some disclosure by the employee, or for the employee to advise the employer that they are taking medication,” Justice Jaynee LaVecchia stated. In response, attorneys supporting Wild noted that CUMMA does not require disclosure.

In arguing that the lower court’s decision must be overturned, Carriage’s attorney argued that the Appellate Division went too far. “The Appellate Division essentially wants to carve out … to create a new protective class of medical marijuana users—and impose new rules on employers—that they can’t just fire someone for testing positive,” Carriage’s attorney argued. “There is nothing in CUMMA that requires accommodation of medical marijuana use, and the LAD doesn’t require that an employer has to accommodate illegal activity,” he added. “It is a question of law whether an employer is allowed to terminate an employee for testing positive for a drug. That’s what this is about.”

The New Jersey Supreme Court’s decision will have a significant impact on New Jersey employers and medical marijuana patients. We encourage potentially impacted entities to check back regularly for updates.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.

This article is a part of a series pertaining to cannabis legalization in New Jersey and the United States at large. Prior articles in this series are below:

• Appellate Division Requires Employer To Reimburse Employee’s Medical Marijuana Costs
• Five Key Cannabis Industry Legal Updates
• Federal Marijuana Legalization Bill, MORE Act, Advancing in US House