New Jersey’s Appellate Division reversed a trial court’s dismissal of a Law Against Discrimination (“LAD”) claim that was premised on an employer’s failure to accommodate an employee’s off-site medical marijuana use. In Wild v. Carriage Funeral Holdings, Inc., the appellate court held that the New Jersey Compassionate Use Medical Marijuana Act – which provides that “nothing [in the Act] shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace, (N.J.S.A. 24:6I-14) neither created, nor abrogated, employment rights under the LAD.
In Wild, a licensed funeral director was diagnosed with cancer approximately two (2) years after being employed by the defendant. Part of his cancer treatment included a prescription for marijuana use, which was authorized by the Compassionate Use Medical Marijuana Act. In May of 2016, while working a funeral, a vehicle that plaintiff was driving was struck by another vehicle that had run a stop sign. The plaintiff was hospitalized, and advised his treating physicians that he had a license to possess medical marijuana. However, the physician responded that “it was clear [plaintiff] was not under the influence of marijuana, and therefore no blood tests were required.” Plaintiff was examined, given pain medication, and sent home. He then took his prescribed pain medication and used medical marijuana.
Plaintiff’s father took the prescription and licenses to the employer. The employer eventually told Wild’s father that a blood test would be required before the plaintiff could return to work. Plaintiff presented to an urgent care facility to have a blood test administered, and there the physician opined that testing plaintiff was illegal, and warned that the results would be positive due to the marijuana and prescription pain killers taken after the accident. As such, in lieu of a blood test, the plaintiff took a urine test and a breathalyzer test. Those results were not part of the appellate record.
Plaintiff attempted to return to work the following week, after allegedly being advised that there was not a problem with his marijuana use. He left early due to soreness, and was later verbally advised that “corporate” was unable to handle his marijuana use, and that his employment was being terminated. In a written notice, the employer advised that the termination was due to violation of a company policy requiring employees to advise their immediate supervisor if they are taking any medication that may adversely affect their ability to perform assigned duties safely.
After filing suit alleging a violation of the New Jersey Law Against Discrimination, premised on disability (cancer) discrimination, the trial court dismissed that portion of the complaint finding that the Compassionate Use Act “does not contain employment-related protections for licensed users of medical marijuana.” The Appellate Division reasoned that the language of the Compassionate Use Act was unambiguous, and simply intended that the Compassionate Use Act neither create new employment rights, nor destroy existing employment rights, and in no way altered the LAD. Following this conclusion, the Wild case “boils down to a routine determination of whether plaintiff sufficiently stated one or more causes of action under the LAD.” Finding that a prima facie case was pleaded, the court reversed the trial judge and remanded the matter.
Unless disturbed by the Supreme Court, this ruling means that despite the language of the Compassionate Use Medical Marijuana Act, employers may be subject to LAD liability for failure to accommodate marijuana use by their employees, when prescribed to treat a LAD-qualifying disability.