A funeral director who claims he was terminated because of his use of medical marijuana to manage cancer-related pain may pursue discrimination claims against his former employer, the New Jersey Supreme Court ruled in Wild v. Carriage Funeral Holdings, Inc.

As we previously reported, the state’s Appellate Division last year reinstated Justin Wild’s anti-discrimination claims against his former employer, Carriage Funeral Holdings, Inc.

After returning to work following a car-accident-related injury, Wild 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 to Wild and he tested positive for marijuana metabolites. As a result, Wild’s employment was terminated.

Before the New Jersey Supreme Court announced it would review this decision, the state’s legislature amended the Compassionate Use Medical Marijuana Act, to explicitly provide employment protections for medical marijuana users. In particular, the amended statute now prohibits employers from taking any adverse employment action “based solely on the employee’s status” as a medical marijuana patient. In addition, the amendment provides that where an employer does have a drug testing policy, any employee or applicant who tests positive for marijuana must be provided an opportunity to present a legitimate medical explanation for the positive result or to request a retest.

At the time that Wild was terminated, however, the Compassionate Use Act did not provide such explicit protection. Thus, it was up to the judiciary to determine whether employees could nonetheless pursue claims for adverse employment actions related to the use of medical marijuana. The trial court’s answer to this question was no, and it dismissed Wild’s claims, relying on the provision of the Compassionate Use Act that states, “nothing in [the Compassionate Use Act] shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace.”

In reversing the trial court’s dismissal, the Appellate Division held that Wild had stated a cognizable claim for discrimination under the New Jersey Law Against Discrimination (NJLAD) on the basis of his disability. The Appellate Division reasoned, “the Compassionate Use Act intended to cause no impact on existing employment rights" which included the right to be reasonably accommodated.

In reviewing this decision, the Supreme Court affirmed the Appellate Division’s ultimate holding and the case was remanded to the trial court for further proceedings. Notably, however, the Supreme Court declined to adopt the broad view that “the Compassionate Use Act intended to cause no impact on existing employment rights.” Specifically, the court observed that there are two particular provisions of the Compassionate Use Act that can impact an NJLAD claim: (1) the provision stating that employers are not required to accommodate medical marijuana use in the workplace; and (2) the prohibition against operating a vehicle or other heavy equipment when under the influence of marijuana.

The five-page per curiam opinion did not discuss the effect of the recent amendments to the Compassionate Use Act. The court referred only to the 2018 version of the Act, implying that it will not apply the amendments retroactively. As the decision pointed out, there are cases where an employee’s medical marijuana use may warrant termination. Employers can still terminate an employee for arriving to work impaired or for having or using marijuana while in the workplace. In addition, employers may face civil and criminal liability for allowing an employee to operate a vehicle while impaired.

As this area of the law is rapidly developing, employers should consult with experienced employment counsel to ensure that they are on solid ground before taking adverse action against an employee who has tested positive for marijuana (medicinal or otherwise) and that their drug testing policies are compliant with the Compassionate Use Act and the holding in Wild v. Carriage Funeral Holdings, Inc.