On July 9, 2019, the New Jersey Supreme Court agreed to hear a case involving whether an employee can state claim against an employer under the New Jersey Law Against Discrimination (NJLAD) for failing to accommodate out-of-office use of medical marijuana for cancer treatment. As we described in the May 2009 New Jersey Employment Law Letter (Vol. 27, No. 7), the New Jersey Appellate Division previously reversed the dismissal of the employee’s action, holding that the New Jersey Compassionate Use Act’s mandate that employers need not accommodate medical marijuana users in the workplace does not foreclose a NJLAD action when the employee was not seeking to use marijuana during work. The New Jersey Supreme Court is expected to rule in the case in 2020.
Justin Wild, a licensed funeral director, was employed by Carriage Funeral Holdings (Carriage). In 2015, Wild was diagnosed with cancer and was prescribed medical marijuana as part of his treatment. In May 2016, while working, Wild was in a car accident and was taken to an emergency room. Wild disclosed to the hospital that he had a license to use medical marijuana. Because Wild did not appear to be under the influence of marijuana at the time, the treating physician declined to perform a blood test.
When Wild disclosed the situation to his employer, Carriage required Wild to take a blood test before returning to work. Wild appeared for a blood test. He explained to Carriage that he would test positive because of the prescribed marijuana and pain killers he received from the hospital, but stated that he only uses prescribed marijuana when at home, not at work, because he would not jeopardize his license.
Several days later, Carriage terminated Wild’s employment because of the drug test. In court filings, Carriage claimed that the termination was actually because Wild violated Carriage policy requiring employees to inform Carriage if they are taking medications that could adversely affect their job performance. Wild also alleged that another funeral home heard that he was fired because he was a “drug addict.”
The trial court dismissed Wild’s NJLAD and defamation claims, citing the New Jersey Compassionate Use Act’s mandate that that nothing “require[s] . . . an employer to accommodate the medical use of marijuana in any workplace.” N.J.S.A. 24:6I-14.
Appellate Division Reverses
Because the case arrived after a motion to dismiss, the Appellate Division was constrained to accept as true Wild’s allegations. In this context, the Appellate Division held, Wild successfully pleaded the prima facie elements of a NJLAD claim: he alleged that he was disabled because he had cancer, he was able to continue to work as a funeral director, and that his employment was terminated.
Reviewing the Compassionate Use Act, the Court found that the Legislature did not intend to expand employee’s rights, but also did not intend to destroy any rights already available under the NJLAD. As to Wild, the Court held that he 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. Thus, the Court held, Wild did not seek to circumvent the Compassionate Use Act 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.” At the motion to dismiss stage, the Court concluded, Wild had pleaded enough to allow the case to proceed to discovery.
The N.J. Supreme Court Steps into the Fray
By agreeing to hear the case, the New Jersey Supreme Court has indicated that the issues in this case are of general importance and are likely to recur in other cases. Norms regarding marijuana usage for both medical and recreational purposes continue to evolve, and the New Jersey Legislature has legislated various areas involving marijuana usage. Supreme Court guidance on the interaction between these laws and the employment laws of general application will employers and employees on their respective rights in this area.
As we await clarifying guidance from the Supreme Court, employers must continue to be extremely careful with respect to employee use of marijuana. In New Jersey, the Compassionate Use Act allows employers to prohibit the use of medical marijuana at work and do not need to accommodate at-work marijuana use. Regardless of the Supreme Court’s decision, Wild is a reminder for employers to engage in the interactive process and exercise caution if an employee is using marijuana outside of work and is not under the influence on the job. Termination of an employee solely on that basis will be problematic and may lead to liability under the NJLAD.
For more information on medical and recreational marijuana use at work, please contact please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at email@example.com or Lawrence Bluestone, Esq., Counsel, at firstname.lastname@example.org.