A New Jersey federal judge recently held that an employer did not discriminate against an employee on the basis of a disability when it refused to waive a drug testing requirement as an accommodation for the employee’s medical marijuana use.
Daniel Cotto, Jr. worked for Ardagh Glass Packaging Inc. as a forklift driver. Following a workplace injury, Ardagh ordered Cotto to take breath and urine tests, but Cotto declined stating that he would not pass a drug test because he takes several medically-prescribed drugs and is a registered medical marijuana user. Ardagh advised Cotto that it could not allow him to continue working there unless he tested negative for marijuana, so he remained on indefinite suspension. Cotto claimed this was disability discrimination and that the decriminalization of medical marijuana under the New Jersey Compassionate Use Medical Marijuana Act ("CUMMA") together with the New Jersey Law Against Discrimination ("LAD") compelled Ardagh to accommodate him and waive the drug test requirement.
The LAD forbids unlawful discrimination against an individual on the basis of disability, unless the nature and extent of the disability reasonably precludes the performance of the particular employment. The court distinguished "treatment" from "disability," noting that the employer did not take issue with Cotto’s disability, rather only with a consequence of his treatment. The court then turned to the federal prohibition of marijuana. New Jersey, along with at least 30 other states, allows the medical use of marijuana. In New Jersey, CUMMA protects qualifying individuals from criminal prosecution and certain civil penalties. However, CUMMA does not require employers to permit the use of medical marijuana in the workplace and, in fact, specifically states that employers are not required to accommodate the use of marijuana in the workplace. CUMMA differs from other state statutes, (e.g., Connecticut and Delaware), which prohibit discrimination against applicants and employees who use medical marijuana in compliance with state law.
Judge Kugler noted that unless expressly provided for by statute, most courts across the country (including Washington, Michigan, Colorado, New Mexico, and California) have concluded that the decriminalization of medical marijuana does not shield employees from adverse employment actions.
Ultimately, the court found that Ardagh was within its rights to refuse to waive a drug test for federally-prohibited narcotics and that the employee could not compel his employer to waive its requirement that he pass a drug test.
This case goes against the recent trend where courts have permitted employees who use medical marijuana to pursue disability discrimination lawsuits. Click here for the blog post on the Connecticut case. Click here for the blog post on the Massachusetts case. Click here for our blog about the three questions employers should consider regarding medical marijuana.
Employers should continue to monitor the expanding legalization of medical marijuana across the country and review their drug testing policies and procedures with counsel for compliance with state statutes. If an employee advises he or she uses medical marijuana, would fail a drug test, or refuses to take a drug test, employers should consult with counsel before taking disciplinary action.
The case is Daniel Cotto, Jr. v. Ardagh Glass Packaging, Inc., et al., No. 18-1037 (D.N.J. Aug. 10, 2018).
