Earlier this year, the New Jersey Appellate Division addressed the relationship between the Compassionate Use Medical Marijuana Act, N.J.S.A. 24:6I-1 et seq., and the Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 et seq. In Wild v. Carriage Funeral Holdings, Inc., 458 N.J. Super. 416 (App. Div. 2019), the plaintiff claimed he was fired from his job as a funeral director because he had a disability (cancer) and was treating his disability with medical marijuana.
While the plaintiff was working a funeral, a vehicle that he was driving was struck by another vehicle that ran a stop sign. Plaintiff was taken to a hospital, where he advised the treating physician that he has a prescription for and used medical marijuana. The physician, however, concluded that the plaintiff was not under the influence of marijuana. This information was provided to plaintiff’s employer, who terminated his employment because “he failed to disclose his use of medication [medical marijuana], which might adversely affect his ability to perform his job duties.”
Plaintiff sued, claiming his termination constituted disability discrimination under LAD. He asserted that LAD required his employer to accommodate his use of medical marijuana as part of his cancer treatment. The trial court dismissed the complaint, holding that the Compassionate Use Act did not foreclose an employer’s right to terminate an employer for medical marijuana use.
This decision was reversed on appeal, with the Court focusing on the language of the Compassionate Use Act stating that nothing in the Act requires “an employer to accommodate the medical use of marijuana in any workplace.” The Court’s view was that while nothing in the Act requires an accommodation, there was also nothing in the Act that impacted LAD’s requirement to provide accommodations to individuals with disabilities.
On July 16, 2019, the New Jersey Supreme Court granted certification to review the Appellate Division’s holding in Wild. However, on July 2, 2019, the Compassionate Use Act was amended with several provisions that greatly affect how employers are required to address medical marijuana in the workplace and address the very section of the Act at issue in Wild. These amendments took effect immediately.
The language of the Act stating that nothing “shall be construed to require…an employer to accommodate the medical use of marijuana in the workplace” was altogether eliminated. A new section was added that makes it “unlawful to take any adverse employment action against an employee” who has been approved and to receive medical marijuana. “Adverse employment action” is defined as refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.
In addition, the amendments provide that if an employer has a drug testing policy and an employee or job applicant tests positive for marijuana, the employer shall offer the employee or job applicant an opportunity to present a legitimate medical explanation for the positive test result, and shall provide written notice of the right to explain to the employee or job applicant.
Within three working days after receiving such notice, the employee or job applicant may submit information to the employer to explain the positive test result or may request a confirmatory retest of the original sample at the employee’s or job applicant’s own expense. As part of an employee’s or job applicant’s explanation for the positive test result, the employee or job applicant may present an authorization for medical marijuana issued by a health care practitioner or proof of registration with the program.
The amendments also provide that nothing under the law shall be deemed to: (1) restrict an employer’s ability to prohibit, or take adverse employment action for, the possession or use of intoxicating substances during work hours or on the premises of the workplace outside of work hours; or (2) require an employer to commit any act that would cause the employer to be in violation of federal law, that would result in a loss of a licensing-related benefit pursuant to federal law, or that would result in the loss of a federal contract or federal funding.
With these amendments, the upcoming decision from the New Jersey Supreme Court in the Wild case seems to have less significance to the workplace. The amendments, however, do require all New Jersey employers to examine any existing drug testing policies to ensure compliance. Anti-discrimination policies in handbooks and elsewhere must also be updated to provide protections to applicants and employees who test positive for medical marijuana.