By Lía Fiol-Matta, Esq., Ty Hyderally, Esq.
When it comes to cannabis and the workplace, the terrain can be rather complex. Since 2010, the use of medical marijuana to treat certain conditions has been legal in New Jersey under the Compassionate Use of Medical Marijuana Act, N.J.S.A. 24:6I-1 et seq., (“CUMMA”). Recently, though, a worker’s employment with Amazon, in New Jersey, came to a sudden halt after the warehouse employee failed a drug test for marijuana. The employee then initiated a legal action against Amazon as he possesses a valid medical marijuana card.
The man, identified only as D.J.C. in his federal lawsuit, claims that he tried to disclose prescription medications he was taking, prior to submitting to a mandated 2018 drug test. However, Amazon did not allow him to do so, instead telling D.J.C. that he could disclose that information if his test came back positive. Upon testing positive, Amazon fired the employee immediately, despite his explanation that he was taking marijuana medicinally to treat his panic and anxiety disorder. D.J.C. had been promoted twice during his employment and was never impaired on the job. According to the lawsuit, Amazon justified the firing by saying that D.J.C. did not previously advise the company that he used medical marijuana.
To make matters worse, despite having a policy where it reconsiders hiring fired workers after 120 days, Amazon allegedly blacklisted D.J.C., who was rejected from re-applying to Amazon as well as to Whole Foods, the grocery store chain owned by Amazon, where he was told he could not be hired because he was fired by Amazon.
Medical marijuana is legal in the District of Columbia, four U.S. territories, and thirty-three (33) states (including New Jersey). This is the case despite the fact that it is still a criminal drug under federal law. In fact, marijuana is listed as a Schedule 1 drug, under the Controlled Substances Act.
In another relevant case, on July 16, 2019, the New Jersey Supreme Court granted certification to review the Appellate Division’s decision in Wild v. Carriage Funeral Holdings, Docket No. A-3072-17T3, which ruled that the New Jersey Law Against Discrimination’s (“LAD”) requirement that employers reasonably accommodate disabilities applied to an employee’s use of medical marijuana, which is legally prescribed under the CUMMA.
In 2013, Justin Wild began working for Carriage as a licensed funeral director. In May 2016, while working a funeral, a vehicle he was driving was hit by another vehicle. Wild was injured and was taken by ambulance to a hospital emergency room, where he advised a treating physician that he had a license to possess medical marijuana. The physician responded that it was clear Wild was not under the influence of marijuana, and therefore no blood tests were taken.
Carriage learned of Wild’s medical marijuana use after the accident. Although Wild informed his employer that he used marijuana to alleviate his cancer pain, and only did so during non-work time, Carriage mandated that Wild take a blood test before returning to work. Wild complied, despite the fact that he explained that he would test positive, because of the medical marijuana and pain killers he was prescribed after the accident. Nevertheless, upon testing positive for drugs, Carriage terminated Wild for his failure to disclose his use of the medication, which allegedly could adversely affect his job performance
After Carriage fired him, Wild filed suit, claiming that Carriage could not lawfully terminate his employment without violating the LAD because Wild had a disability (cancer) and was legally treating that disability, in accordance with his physician’s directions and in conformity with CUMMA. The trial court dismissed the case, concluding that CUMMA did not contain employment-related protections for individuals using medical marijuana legally and that Wild was terminated for testing positive on a drug test and violating Carriage’s drug use policy.
The Appellate Division reversed the decision of the trial court, holding that CUMMA’s refusal to require an employment accommodation for a medical marijuana user does not mean it excuses employers from obligations already imposed under other statutes, such as the LAD. A lawful obligation would include reasonably accommodating an employee’s disability, such as an employee’s off-duty and off-site use of medical marijuana or cannabis.
Since the decision in Wild, New Jersey joined Illinois, Nevada, New Mexico, New York City, and Oklahoma in enacting employment protections for authorized users of medical cannabis. New Jersey’s new medical marijuana law amends CUMMA and, among other measures, prohibits employers from taking an adverse employment action (such as failing to hire, firing, suspending, demoting, or issuing discipline) against a current or prospective employee based on the individual’s status as a registered qualifying user of medical marijuana.
Until the federal government legalizes marijuana and/or New Jersey passes legislation clarifying the interaction of the CUMMA, the LAD and state employment laws, this area of law will continue to be confusing and uncertain. If you wish to discuss your employment rights as a licensed user of medical marijuana you are encouraged to seek legal advice.
This blog is for informational purposes only. It does not constitute legal advice, and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts. This blog may constitute attorney advertising. This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.