New Jersey joins a growing number of states with medical marijuana statutes that provide a private right of action protecting employees from adverse actions based on their use of medical marijuana. Following a recent judicial interpretation of the New Jersey Law Against Discrimination (NJLAD), an employer may be held liable for terminating an employee based solely on a positive drug test when that employee’s use of marijuana was for legitimate medical treatment under the Compassionate Use Act.

To mitigate risk of discrimination claims, employers that terminate an employee who uses medical marijuana must document reasonable suspicions of workplace impairment and support those claims with relevant expert testimony. These developments provides key guidance on how New Jersey employers should treat medical marijuana users in the workplace.

On March 27, 2019, the New Jersey Appellate Division reversed a dismissal of anti-discrimination claims under NJLAD in the case of Wild v. Carriage Funeral Holdings, Inc. The plaintiff in Wild was a funeral director who had been using medical marijuana to manage cancer-related pain. After returning to work following a car-accident-related injury, the plaintiff informed his employer that he had been using medical marijuana to treat his cancer. He explained that his doctor did not perform a drug test after his car accident because he did not appear impaired and the doctor already knew that a test would reveal the presence of marijuana metabolites. The funeral home then administered its own drug test, for which the plaintiff tested positive for marijuana metabolites and was subsequently terminated.

The preceding trial court had found that the plaintiff did not state a claim on which relief could be granted based on the provision of the Compassionate Use Act, which states, “nothing in [the Compassionate Use Act] shall be construed to require ... an employer to accommodate the medical use of marijuana in any workplace.” The Appellate Division, analogizing this provision to the first law of thermodynamics, found that it “neither creates nor destroys rights and obligations” and that the trial court was thus wrong in determining that the Compassionate Use Act foreclosed an employee from asserting a cause of action under the NJLAD.

As the case was on appeal at such an early stage, the Appellate Division was limited to determining whether the plaintiff had made a preliminary showing of discrimination. To make a prima facie case under the NJLAD, an employee must allege that:

• The employee has a disability or that the employer perceived such a disability;
• The employee was qualified to perform the essential functions of the job and was performing them at a level that met the employer’s expectation;
• The adverse employment action was because of the disability or perceived disability; and
• The employer thereafter sought a similarly qualified, but non-disabled, individual.

The court found that this test was met as the plaintiff had a history of cancer and alleged he was terminated because of his medical use of marijuana.

The court went on to note that its decision would  not give medical marijuana users carte blanche immunity from adverse action. Employers can still terminate an employee for arriving to work impaired or for having or using marijuana while in the workplace.

Based on Wild and similar cases in other states with medical marijuana statutes, however, employers should not rely solely on a positive drug test to establish impairment. If an employer is going to rely on a drug test, it must be coupled with expert testimony demonstrating that the level of metabolites in the employees system are such that he or she was likely impaired. If an employer has requested a drug test based on a reasonable suspicion that an employee is impaired, a contemporaneous memorandum should be written documenting the reasons why it was suspected that the employee was impaired. These reasons may include: seeing marijuana on the employee’s person or in the workplace, the smell of marijuana, slurred speech, erratic behavior, disorientation, confusion and/or an inability to perform routine tasks.

Further, the Appellate Division in Wild did not specifically address other defenses to discrimination. Particularly given the current conflict between state and federal law, multi-state employers and employers in certain industries may be particularly concerned about the problems that marijuana use may cause. New Jersey may join states such as Arizona, Connecticut, Delaware and Massachusetts, where courts have recognized a defense to discrimination claims where the adverse action was against an employee in a safety-sensitive position or a federally regulated industry.

The Wild case provides guidance as the New Jersey Legislature looks to expand the availability of medical marijuana and contemplates the possibility of legalizing recreational marijuana. As such, Wild is likely the beginning of a very long conversation on how employers should treat marijuana in the workplace.

[View source.]