On Tuesday, March 10th, the New Jersey Supreme Court issued its much anticipated decision in Wild v. Carriage Funeral Holdings, Inc., et al.,(A-91-18) (082836), affirming that a medical cannabis patient can assert a claim for employment discrimination under the New Jersey Law Against Discrimination (NJLAD) for an adverse employment action based on an employee’s off-site medical cannabis use. Notably, the Court did not address the recently enacted Jake Honig Compassionate Use Medical Cannabis Act, which amended the Compassionate Use Act and included new statutory protections for medical cannabis patients. Accordingly, prior to taking any adverse employment action based on an employee’s off site authorized medical cannabis use, employers should engage in the interactive process and consider their ability to provide a reasonable accommodation as they would any other potential disability on the job. 

Last year we blogged about the New Jersey State Appellate Division’s decision in Wild v. Carriage Funeral Holdings, Inc., et al., 458 N.J. Super. 416 (App. Div. 2019). (The blogs along with a recitation of the relevant facts are available here and here). In Wild, the plaintiff’s NJLAD disability discrimination claim stemmed from his lawful off-site medical marijuana use pursuant to the Compassionate Use Act. In that decision, the Appellate Division held that employers may be required to accommodate an employee’s use of medical marijuana under the NJLAD and the Compassionate Use Medical Marijuana Act (Compassionate Use Act), thus allowing the claim to proceed. The Court affirmed the Appellate Division’s decision on this basis.

The Court however declined to adopt the Appellate Division’s reasoning that "the Compassionate Use Act intended to cause no impact on existing employment rights." The Court reasoned that had the Legislature not enacted the Compassionate Use Act, the plaintiff would not have an NJLAD claim. Therefore, the Compassionate Use Act has an impact on the plaintiff’s employment rights. The Court noted that as alleged here, a plaintiffs authorized use of medical cannabis outside the workplace, is "harmonized with the law governing [NJLAD] disability discrimination claims." Accordingly, the claim is allowed to proceed at the motion to dismiss stage. 

After the Court granted certification in this case New Jersey enacted the Jake Honig Compassionate Use Medical Cannabis Act on July 2, 2019, which amended the Compassionate Use Act and contains explicit workplace protections for medical cannabis patients. It affirmatively prohibits employers from taking an "adverse employment action" against an employee who is a registered qualifying patient based solely on the employee’s status as a registrant. Further, employers with drug testing policies must provide written notice and offer the employee or job applicant an opportunity to present a legitimate explanation for the positive test result. The employee’s or applicant’s presentation of an authorization for medical cannabis issued by a health care practitioner or a registry identification card is sufficient to provide a satisfactory explanation for the positive result.

Pursuant to the statute, employers may still prohibit and/or take adverse employment action for the possession or use of intoxicating substances during work hours or on work premises. Further, an employer would not be required to commit any act that would cause it to be in violation of federal law, that would result in a loss of a licensing-related benefit pursuant to federal law, or that would result in the loss of a federal contract or federal funding. Nor would an employer be penalized or denied any benefit under state law solely on the basis of employing a person who is a registry identification cardholder registered with the commission.

This decision coupled with the amended statute make clear, if an employee working in New Jersey or for a New Jersey employer advises that he or she uses medical cannabis, would fail a drug test, or refuses to take a drug test, employers should understand their obligations under the law and should consult with counsel before taking any adverse employment action.