NJ Supreme Court: Employees Can Challenge Termination Decisions Based on Off-Duty Medical Marijuana Use

Ballard Spahr LLP

Ballard Spahr LLP

Last week, the New Jersey Supreme Court ruled that an employee who was fired after revealing that he used medical marijuana outside of work to treat his cancer has a basis to sue for disability discrimination under the New Jersey Law Against Discrimination (NJLAD). The decision analyzed the employee’s claim harmonizing the employee’s rights under the NJLAD and New Jersey’s former Compassionate Use of Medical Marijuana Act, which specifically stated that it did not require employers to accommodate an employee’s use of medical marijuana in the workplace. Subsequent to the events giving rise to the employee’s claim in this case, New Jersey amended its medical marijuana law in July 2019, adopting for the first time formal protections for employees and job applicants who use “medical cannabis.”

In the case decided earlier last week, Justin Wild v. Carriage Funeral Holdings, Inc., a funeral director named Justin Wild had been diagnosed with cancer and his physician prescribed medical marijuana to alleviate pain. When Wild was later involved in a car crash while on duty, his employer required him to take a drug test, which came back positive. Although Wild alleged in his complaint that he was being terminated because of the positive drug test, his termination letter advised that he was terminated for failure to disclose his use of medical marijuana, which might adversely affect his ability to perform his duties, in violation of company policy.

Wild filed a disability discrimination suit under the NJLAD. The trial court granted the employer’s motion to dismiss after determining that the Compassionate Use Act did not contain employment-related protections for licensed users of medical marijuana, based on language in the Act stating: “[n]othing in this act shall be construed to require…an employer to accommodate the medical use of marijuana in the workplace.” The trial court further held that Wild’s positive drug test constituted a legitimate business reason for his discharge because marijuana remains prohibited under federal law.

The Appellate Division reversed, concluding that Wild had a disability that qualified his use of medical marijuana, and the fact that the Compassionate Use Act did not “require” employers to accommodate an employee’s use of medical marijuana did not affect an employer’s obligation under the NJLAD to reasonably accommodate an employee’s disability, which may include an employee’s off-duty use of medical marijuana. The Appellate Division rejected the employer’s contention that the Compassionate Use Act was in conflict with the NJLAD. Rather, the court found that the Act neither created new employment rights nor destroyed existing employment rights, having no impact on NJLAD.

The Supreme Court affirmed, but held that that the former Compassionate Use Act did have an impact on employment rights in two scenarios: (1) employers are not required to accommodate use of medical marijuana in any workplace, and (2) employees are not permitted to operate, or be in control of, any vehicle, aircraft, heavy equipment, or vessel while under the influence of marijuana. To the extent that the circumstances surrounding a NJLAD disability discrimination claim were to implicate one or both of those provisions of the Compassionate Use Act, the Act would have an impact on that claim.

New Jersey’s amended law, now known as the Jake Honig Compassionate Use Medical Cannabis Act, explicitly provides that employers cannot take an adverse employment action solely because an individual is a registered medical marijuana patient. The law, however, permits employers to take adverse action based on test results in appropriate circumstances, such as possessing or using marijuana during work hours or on workplace premises, or upon evidence that marijuana use would render the employee unable to perform his or her job duties.

The Supreme Court in Wild did not address the employer’s argument that it terminated Wild not for his marijuana use, but for failing to disclose that he was licensed user in violation of company policy. This, and other employer rights and obligations associated with an employee’s use of medical marijuana, remain uncertain.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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