The New Jersey Supreme Court recently affirmed the reinstatement of an employee’s complaint alleging disability discrimination based on his registered medical marijuana user status, reasoning that the employee was entitled to disability protections despite violating the employer’s drug policies. This case, as well as recent amendments to the state’s medical marijuana law, indicate that employers in New Jersey should engage in the interactive process when considering accommodation requests from registered users and should not take any adverse action against a registered user simply because of their status.
In Wild v. Carriage Funeral Holdings, Inc., the Superior Court of New Jersey dismissed an employee’s complaint alleging disability discrimination under the New Jersey Law Against Discrimination (NJLAD) when he was terminated for violating his employer’s drug policy, despite being a lawful user of medical marijuana under the state’s Compassionate Use Medical Marijuana Act (CUMMA). The CUMMA (at the time, as it has since been amended) explicitly stated that “nothing” in the law “require[d]” an employer to accommodate medical marijuana use. N.J.S.A. 24:6I-14. The trial court reasoned that the CUMMA, therefore, did not contain employment protections for registered users.
Six months later, the District Court of New Jersey similarly dismissed a medical marijuana user’s disability discrimination and failure to accommodate claim. Cotto v. Ardagh Glass Packing, Inc., No. 18-1037, 2018 U.S. Dist. LEXIS 135194 (D.N.J. Aug. 10, 2018).
The trend towards dismissal abruptly ended on March 27, 2019, when the Superior Court of New Jersey Appellate Division overturned the Wild decision and reinstated the complaint. Despite the clear language in the CUMMA that it did not require employers to accommodate medical marijuana use, the Appellate Division nonetheless reasoned that the law “neither create[d] nor destroy[ed] rights and obligations,” found no conflict between the CUMMA and the NJLAD, and ruled that the NJLAD’s disability discrimination protections extended to a medical marijuana user. Essentially, the Appellate Division reasoned that employers remain bound by the requirements of the NJLAD even when an employee has violated their drug policies.
The employer appealed to the New Jersey Supreme Court. While the appeal was pending, New Jersey’s legislature amended the CUMMA on July 2, 2019, replacing the language stating that employers were not required to accommodate medical marijuana use with language prohibiting adverse employment actions based “solely” on an employee’s registered user status. N.J.S.A. 24:6I-6.1. This new statutory language mirrors that of other states that have extended employment protections to registered users. There is little guidance from the courts at this time, however, as to when an adverse action will be treated as being based “solely” on an individual’s registered user status.
While the employment protections added to the CUMMA in July 2019 were not retroactive, it was unsurprising that on March 10, 2020, the Supreme Court of New Jersey affirmed the Appellate Division’s decision, agreeing that there was no conflict between the CUMMA and the NJLAD. Notably, however, the supreme court disagreed with the Appellate Division’s assessment that the CUMMA did not impact employment protections in any way, referencing the following provisions of the CUMMA that “may affect” an NJLAD disability claim:
(1) the accommodation language noted above that has since been repealed; and
(2) statutory language that the CUMMA “shall not be construed to permit a person to: a. operate, navigate or be in actual physical control of any vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of marijuana.” N.J.S.A. 24:6I-8.
This certainly suggests that the court may have taken a different view if the employee’s termination was tied to being under the influence while operating a vehicle, for example.
That said, determining whether an employee is “under the influence” of marijuana can be challenging. Marijuana remains in the system for an extended period of time – and sometimes long after the user is feeling any of its effects. Additionally, individuals metabolize marijuana at different rates, and there is no test that definitively determines marijuana impairment. Therefore, when acting based on a belief of impairment, employers should document any signs of intoxication (gait, speech, smell, etc.) contemporaneous with drug testing to bolster any conclusion they reach.
As the shift in medical marijuana protections in New Jersey demonstrates, this area of the law is constantly evolving. Employers are advised to consult their legal counsel when confronted with employees or applicants who are registered medical marijuana users to determine whether an accommodation obligation might exist with respect to such individuals.