The New Jersey Supreme Court has issued an important decision holding that an employer’s refusal to permit an employee to use medical marijuana can constitute a violation of the New Jersey Law Against Discrimination. The New Jersey Legislature has in recent years recognized the medical benefits of cannabis use to treat symptoms of certain medical conditions. As a result, New Jersey has enacted progressive legislation, including enacting the Compassionate Use Act supporting the use of medicinal marijuana. The New Jersey Supreme Court’s ruling provides greater job protection to New Jersey employees treating serious medical conditions with medicinal marijuana and affirms New Jersey’s position on the use marijuana as a legitimate method of medical treatment.
In Wild v. Carriage Funeral Holdings, Inc., the plaintiff, Justin Wild, was employed with the defendant company, Feeney Funeral Home, LLC as a licensed Funeral Director. In 2015, Wild was diagnosed with cancer. His treating Physician prescribed medicinal marijuana as a component of his cancer treatment–primarily to help manage pain. Wild did not disclose this treatment method to his employer, but on days he worked, Wild would only take his prescribed medical marijuana after his shift had ended.
In May of 2016, Wild was involved in a motor vehicle collision during work. Another driver had run a stop sign and struck Wild’s vehicle. As a result of the accident, Wild required medical attention. At the hospital, Wild disclosed to his treating physician that he had a prescription for and had been using medical marijuana to treat his cancer. Upon inspection, the physician concluded the Wild was not under the influence of marijuana at the time of the incident.
Wild’s father related this information to Wild’s employer. The employer thereafter required that Wild submit to a drug test before the company would permit him to return to work. Despite knowledge that he would fail a drug test due to the prescribed medical marijuana in his system, Wild submitted to the drug test. Wild’s drug test, unsurprisingly, returned positive for marijuana.
The company allowed Wild to return to work the next week. Upon his return, Wild’s supervisor advised Wild that he did not know what “corporate” was going to do about Wild’s drug test results, but stated that “everything should be fine.” Within a few days, the company terminated Wild’s employment. His supervisor advised him that the company terminated him because of the drug test. However, the company thereafter provided Wild a termination letter which explained that the reason for his termination was that that he had failed to disclose to the company his use of medical marijuana and that, in the company’s opinion, the marijuana could affect his ability to perform his job.
Wild then filed a lawsuit for disability discrimination and failure to accommodate under the New Jersey Law Against Discrimination. Wild alleged, among other things, that his employer had relied on his use of prescribed medical marijuana as the basis of his termination, and, accordingly, had discriminated against him on the basis of his disability. The employer moved to dismiss his claims, arguing that it did not have any duty to accommodate his use of medical marijuana. The New Jersey Supreme Court agreed with Wild, denying the motion to dismiss, allowing Wild to move forward with litigation.
At the pleading stage, Wild was only obligated to establish a prima facie case of discrimination under the New Jersey Law Against Discrimination, that (1) he had a disability or the employer’s perceived him to have a disability; (2) he could perform the essential functions of the job; (3) there was an adverse employment action because of his disability or perceived disability; and (4) the circumstances give rise to an inference of discrimination.
Wild’s allegations of discrimination and refuse to accommodate relied heavily on the New Jersey’s decriminalization of medical marijuana through the 2015 Compassionate Use Act. The Compassionate Use Act decriminalizes the possession and use of medical marijuana for those individuals whose physicians have prescribed them marijuana to treat their ailments, as well as possession and distribution of the substance for physicians and suppliers. Indeed, the primary purpose of the Compassionate Use Act is to “protect from arrest, prosecution, property forfeiture, and criminal and other penalties, those patients who use marijuana to alleviate suffering from debilitating medical conditions.” Wild argued that the company’s use of his failed drug test, resulting from his use of prescribed medical marijuana off-the-clock, was contrary to the purpose of the Compassionate Use Act.
The company relied heavily on the one provision of the Compassionate Use Act, which has since been amended, which states in relevant part, “[n]othing in [the Act] shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace.” Accordingly, the employer argued that it was free to consider Wild’s marijuana use in its decision to terminate his employment, because the Act imposed no duties on employer with respect to the workplace.
The New Jersey Supreme Court disagreed. The Court reasoned that although the Compassionate Use Act does not place a duty on the employer to accommodate the use of medical marijuana in the workplace, it does not immunize the employer from legal obligation that are imposed by other areas of the law, namely the New Jersey Law Against Discrimination. The New Jersey Law Against Discrimination requires that employers reasonably accommodate the employee’s disabilities, unless an accommodation would result in an undue hardship on the company.
The Court rejected the argument that there was a conflict between the duty to accommodate under the New Jersey Law Against Discrimination and the Compassionate Use Act’s provision disclaiming any requirement to accommodate medical marijuana in the workplace. Instead, the Court recognized a harmony between the New Jersey Law Against Discrimination and the Compassionate Use Act, stating that the Act’s authorization of Wild’s marijuana use allowed for the basis of his New Jersey Law Against Discrimination claim, in this case. As a result, the Court found that Wild had meet his burden of establishing his claims, at least at the pleading stage.
The Court further noted, however, that Wild’s use of marijuana had not taken place in the “workplace” as stated in the Compassionate Use Act, but instead was entirely off-the-clock. The Court posited that two provisions of the Act could negatively impact an New Jersey Law Against Discrimination claim based on medical marijuana use, that: (1) “[n]othing in [the Act] shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace.”; and (2) “[the Act] shall not be construed to permit a person 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.” The Court noted that if Wild’s use of medical marijuana directly implicated either of these two provisions, there would have been an impact on his claims.
Notably, the New Jersey Legislature amended the Compassionate Use Act in 2019 to remove any language concerning workplace accommodations. Moving forward, the legislatures intentional removal of this language could mean even greater protection for New Jersey employees treating illnesses with medical marijuana. Accordingly, the duty to reasonably accommodate employees using medical marijuana may now stretch into the workplace. The New Jersey Law Against Discrimination requires that employers engage in an interactive process with disabled employees to find a find reasonable accommodation. If such an accommodation exist that does not put an undue burden on the employer, medical marijuana users may be permitted to use the substance or be under its influences in the workplace, so long as the remain able to perform the essential functions of their job.
Our New Jersey employment lawyers will continue to monitor and report on further legal developments concerning the interplay between medical marijuana and workplace rights.