On February 21, 2017, the District of New Jersey dismissed a wrongful termination lawsuit by a medical marijuana user who claimed that the employer failed to accommodate his disability in violation of the New Jersey Law Against Discrimination (“NJLAD”). See Thomas Barrett v. Robert Half Corporation, et al., No. 15-624. The case raises key issues for New Jersey employers whose employees are legally using medical marijuana, however, the court avoided dealing with the significant substantive issues for employers and their employees raised by medical marijuana, including preemption issues, by focusing on a defect in how the complaint was plead.
The New Jersey Compassionate Use Medical Marijuana Act (“NJCUMMA”), protects medical marijuana patients “from arrest, prosecution, property forfeiture, and criminal and other penalties” for using medical marijuana to alleviate suffering from debilitating medical conditions. Since the law was passed in 2010, ambiguities remain regarding the rights of employees who use medical marijuana. Currently, the NJCUMMA does not require employers to provide reasonable accommodations for “the use of marijuana in any workplace.” However, the statute is silent on use of medical marijuana outside of the workplace, and there is currently no case law clarifying this provision. Employers who drug test their employees are obviously left in limbo because if an employee tests positive for marijuana, the employer will be hard pressed to prove that the positive test results from workplace use of marijuana as opposed to use outside of the workplace.
In Thomas Barrett v. Robert Half Corporation, et al., No. 15-6245, the plaintiff suffered chronic pain resulting from a car accident and was issued a license from the State of New Jersey Department of Health’s Medicinal Marijuana Program. Mr. Barrett alleged that he notified his employer, Robert Half Corp., a staffing company, that he was issued a medical marijuana license and that it was for treatment of his disability. Prior to a new work assignment, his supervisor required him to submit to a drug test, to which Mr. Barrett alleges he responded by again informing his employer that he was licensed to use medicinal marijuana. He claimed that his employer responded by telling him not to worry about failing and to simply present his license at the time of the test. Nevertheless, about a week after starting his new work assignment, Mr. Barret was terminated due to a positive drug test.
In moving to dismiss, the employer argued (i) the plaintiff failed to request accommodation with enough specificity, (ii) the NJCUMMA is preempted by the federal Controlled Substances Act (“CSA”) and should not prohibit employers from terminating employees whose conduct violates federal law, and (iii) even if not preempted by federal law, the NJCUMMA does not confer employment protections.
In the order dismissing the action, the court only ruled that Mr. Barrett failed to plead a request for accommodation of his disability, and therefore failed to state a claim. The court held that it was insufficient for the plaintiff to simply notify his employer that he was licensed to use medical marijuana as treatment for his disability. Instead, a plaintiff must allege that he requested an accommodation in connection with his disability. By ruling strictly on whether the plaintiff requested an accommodation, the court left the other points raised in the employer’s motion to dismiss unaddressed – particularly, whether an employee who does properly request an accommodation has a right to such an accommodation under the NJLAD for medical marijuana use, assuming that any marijuana use takes places outside of the workplace. Currently, there is legislation pending in the New Jersey State Senate and Assembly, Bill S-2161, that would make it unlawful for an employer to take adverse employment action (e.g., termination) against an employee for being enrolled in the State medical marijuana program or failing a drug test. However, the bill has yet to come out of committee. Moreover, even if the bill does become the law in New Jersey, it is an open question as to whether the law and the NJCUMMA are preempted under federal law by the CSA, especially with a new federal Department of Justice which has issued public comments indicating a desire to continue to strictly enforce marijuana prohibition.
As a practical matter, employers are in a bind because anyone who has a license to legally use medical marijuana is likely going to have a disability under the NJLAD (and possibly the Americans with Disabilities Act). Plaintiff employees may try to conflate any adverse employment action as being related to the underlying disability as opposed to marijuana use. As a result, the standard advice to employers that they must have anti-discrimination policies in place, policies regarding reasonable accommodations, and training on these policies, is more important than ever. Any adverse action against an employee based upon performance should always be backed up with the appropriate paper trail of performance reviews and/or employee discipline documents to help to show that the termination was not based upon a protected characteristic such as disability.
As to potential adverse action that an employer takes against legal medical marijuana users based solely on failing a drug test for marijuana, employers are in a difficult position. For employers in the transportation and logistics industry where the federal Department of Transportation mandates drug testing and does not allow exceptions for medical marijuana, an employer is going to have a strong legal defense if a fired truck driver attempts to sue after being terminated for testing positive for marijuana, even if he or she has a license to use medical marijuana. However, in other industries where there is no federal drug testing requirement, employers must carefully weigh the benefits and risks before taking adverse action against an employee for a failed drug test based upon marijuana if the employee has a legal license for medical marijuana. Any employers dealing with issues involving medical marijuana should consult with an attorney as the law is constantly evolving in this area.