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NJ Supreme Court Ruled that Employers May Be Required to Accommodate Off-Duty Use of Medical Marijuana

March 19, 2020


The New Jersey Supreme Court recently held that an employee can sue under the New Jersey Law Against Discrimination (“NJLAD”) if the employee is terminated due to lawful use of medical marijuana outside of the workplace and during non-working hours.  This decision resolves prior uncertainty regarding the intersection of the New Jersey Compassionate Use Medical Marijuana Act (“CUMMA”) and the NJLAD.

In Wild v. Carriage Funeral Home, Inc., the plaintiff, Justin Wild, was employed by defendant Carriage Funeral Holdings as a funeral director.  Wild was prescribed medical marijuana (as permitted by CUMMA) as part of his cancer treatment.  Wild alleged that he was fired after he disclosed his lawful use of medical marijuana.

While on duty but not under the influence of marijuana, Wild was driving a vehicle, which was struck by another car.  After the crash, his employer was informed that Wild had been using medical marijuana outside of work.  The employer later required Wild to take a drug test before returning to work and, subsequently, the employer terminated Wild’s employment.  Wild alleged that his supervisor informed him that he was terminated because of “drugs.”  Nevertheless, plaintiff’s termination letter stated that he was fired due to his failure to disclose his use of medical marijuana.  In the Complaint, Wild alleged that he was terminated for his use of medical marijuana.

After his termination, Wild filed a lawsuit, alleging violations of the NJLAD and common law claims.  On a motion to dismiss, the trial court ruled that the CUMMA did not require an employer to accommodate medical marijuana use and dismissed the complaint.

In a per curiam decision, on March 10, 2020, the New Jersey Supreme Court ruled that Wild sufficiently pleaded a cause of action under the NJLAD to survive a motion to dismiss.  The Court noted that where a plaintiff alleges that the CUMMA authorizes the use of medical marijuana outside of the workplace, CUMMA may be harmonized with the NJLAD.   The Court did, however, recognize that employers are not required to accommodate medical marijuana use in all circumstances.  First, employers are not required to accommodate medical marijuana use in the workplace.  Second, employers are not required to permit employees to “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.”  Thus, if any claim under the NJLAD involved such circumstances, the Court recognized that the CUMMA may impact the viability of such a discrimination claim under the NJLAD.

Notably, prior to the New Jersey Supreme Court’s decision in Wild, the New Jersey Legislature amended the CUMMA.  Similar to other state laws (including Pennsylvania), the CUMMA now explicitly prohibits employers from taking adverse employment actions solely because of an employee’s status as a medical marijuana patient.

Despite the growing numbers of state laws permitting the medical and recreational use of marijuana, marijuana remains illegal under federal law.  In addition, given the patchwork of state laws, most of which have been passed in recent years, there is little case law or guidance interpreting these laws.  For example, although the New Jersey Supreme Court observed that the CUMMA permits employers to prohibit employees from operating certain equipment “while under the influence” of medical marijuana, it is not clear what “under the influence” means under the law.

As a result, issues related to employees’ use of medical marijuana present complex questions for employers ranging from compliance with laws prohibiting disability discrimination to liability concerns for employees performing safety sensitive functions.

If you have questions about an employee’s or potential employee’s use of medical marijuana, members of Montgomery McCracken’s Labor and Employment and Cannabis Law practice groups are available to assist. Visit the firm’s Coronavirus (COVID-19) Resource Center for more information and updates on this constantly evolving situation.