Employers will gain critical clarifications as the NJ Supreme Court will determine whether the NJLAD’s anti-discrimination protections require employers to provide reasonable accommodations to employees who use medical marijuana.

About the Case

The plaintiff, Justin Wild, was a funeral director who had been using medical marijuana to manage his cancer-related pain. He was terminated by his employer after he tested positive for marijuana metabolites.

The trial court dismissed the case and held that NJLAD does not require employers to accommodate medical marijuana use. In its ruling, the trial court relied on a provision of the Compassionate Use Medical Marijuana Act which states, “nothing in [CUMMA] shall be construed to require ... an employer to accommodate the medical use of marijuana in any workplace.”

That ruling was reversed in March 2019 when the Appellate Division held that Wild made a preliminary showing of discrimination under the NJLAD, which protects employees from discrimination on the basis of disability.

Amendments Affecting Case Review

In its review, the NJ Supreme Court will have to consider the impact of recent amendments to CUMMA, which has since been renamed the Jake Honig Compassionate Use Medical Cannabis Act (CUMCA). These amendments, which were signed into law on July 2, 2019, provide employment protection to medical marijuana users. Now, under CUMCA, employers are prohibited 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.

Employers are permitted, however, to take adverse action where an employee uses or possesses marijuana at work or where allowing such use would cause the employer to violate federal law or would result in the loss of a federal license, federal contract or federal funding.

With this amendment, New Jersey joins a growing number of states, including Arizona, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Oklahoma and Rhode Island, that offer employment protections to medical marijuana users.

As this amendment was passed after the events leading to Wild’s termination, it is unclear whether it will affect his case on appeal. The court may address whether CUMCA, as amended, grants employees a private right of action, and if so, whether the amendments are retroactive.

While CUMCA now grants these employee protections, it is likely that employees will still seek to bring suits under the NJLAD as a continued source of protection. Unlike CUMCA, the NJLAD allows the possibility for punitive damages and contains a fee-shifting provision.