Smoking Pot – No worries… You Have Some Protections

April 4, 2019

By Francine Foner, Esq. and Ty Hyderally, Esq.

 In a published opinion issued March 27, 2019, the Third Circuit Court of Appeals reversed the New Jersey District Court’s dismissal of the plaintiff’s claim under the New Jersey Law Against Discrimination (LAD), N.J.S.A. §§ 10:5-1 to 10:5-49, for an employer’s failure to provide an employee with an accommodation for his disability that would allow his continued use of medical marijuana. The higher court ruled that although the New Jersey Compassionate Use Medical Marijuana Act, N.J.S.A. § 24:6I-14 (“Compassionate Use Act”) does not require employers to accommodate an employee’s use of medical marijuana in the workplace, employers remains liable under the LAD to accommodate an employee’s continued use of medical marijuana, where it is used outside the workplace and during off-work hours. Wild v. Carriage Funeral Holdings, Inc., 2019 N.J. Super. LEXIS 37, 2019 WL 1371206.

Plaintiff Justin Wild (“Wild”) was hired in 2013 to work for Carriage Funeral Holdings, Inc. (“Carriage”) as a licensed funeral director. In 2015, Wild was diagnosed with cancer. Wild used medical marijuana, as permitted by the Compassionate Use Act, as part of his cancer treatment. Wild disclosed to his supervisor that he was using medical marijuana to treat his cancer, noting that he only used it when he was at home, not at work. Wild also told his supervisor that without this medication, he would have severe pain throughout the day. Several days later Carriage terminated Wilds’ employment because of his use of medical marijuana and the results of a blood test. The employer then changed its reason for his termination to claim that Wilds failed to disclose his use of a medication “which might adversely affect his ability to perform his job duties” in a safe manner, in violation of company policy.

Plaintiff filed suit against Carriage alleging, inter alia, that his termination was in violation of the LAD, despite the results of his drug test, because he had a disability (cancer) and was legally treating that disability with medical marijuana, as prescribed by his physician. However, the District Court held that Plaintiff’s LAD claims should be dismissed, because the Compassionate Use Act “’does not contain employment-related protections for licensed users of medical marijuana’ and, in accepting plaintiff’s own allegations, the adverse employment action was taken due to a positive drug test and a violation of Carriage’s drug use policy.” Id. at 10-11.

The Third Circuit disagreed and held that “just because the Legislature declared that ‘[n]othing in [the Compassionate Use Act] shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace,’ N.J.S.A. 24:6I-14, does not mean that the LAD may not impose such an obligation, particularly when the declination of an accommodation to such a user relates only to use ‘in any workplace.’” Id. at 20.

Thus, since Wild alleged that he sought an accommodation that would permit him to continue his use of medical marijuana only off-site or during off-work hours, and he otherwise established a prima facie case of disability discrimination under the LAD, the Compassionate Use Act did not warrant dismissal of his disability discrimination claim under the LAD, and the Third Circuit reversed the District Court’s dismissal of Wilds’ LAD claim. Id. at 20-21.

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