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The following piece was published in this month's New Jersey Lawyer, which focuses on cannabis. Access to New Jersey Lawyer is a benefit for all members. You can see the entire issue by clicking here. (login required)

By Ruth A. Rauls and Gillian A. Cooper 

A New Jersey federal court recently held in Daniel Cotto, Jr. v. Ardagh Glass Packaging, Inc., et al., that an employer did not discriminate against an employee on the basis of a disability when it refused to waive a drug-testing requirement as an accommodation for the employee’s medical marijuana use.¹ This case goes against the recent trend where courts have permitted employees who use medical marijuana to pursue disability discrimination lawsuits.²

Daniel Cotto Jr. worked for Ardagh Glass Packaging Inc. as a forklift driver. Following a workplace injury, Ardagh ordered Cotto to take breath and urine tests. Cotto declined, stating that he would not pass a drug test because he was taking several medically prescribed drugs and was a registered medical marijuana user. Ardagh advised Cotto that it could not allow him to continue working unless he tested negative for marijuana, so he remained on indefinite suspension. Cotto claimed this was disability discrimination and that the decriminalization of medical marijuana under the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), together with the New Jersey Law Against Discrimination (LAD), compelled Ardagh to accommodate him and waive the drug test requirement.

The LAD forbids unlawful discrimination against an individual on the basis of disability, unless the nature and extent of the disability reasonably precludes the performance of the particular employment. The court distinguished ‘treatment’ from ‘disability,’ noting that the employer did not take issue with Cotto’s disability, rather only with a consequence of his treatment. The court then turned to the federal prohibition on marijuana as a basis to find Cotto’s treatment option was not subject to statutory protection, notwithstanding the fact that New Jersey, along with at least 30 other states, allows the medical use of marijuana.

In New Jersey, CUMMA protects qualifying individuals from criminal prosecution and certain civil penalties. However, CUMMA does not require employers to permit the use of medical marijuana in the workplace and, in fact, specifically states that employers are not required to accommodate the use of marijuana in the workplace. CUMMA differs from other state statutes, (e.g., Connecticut and Delaware), which prohibit discrimination against applicants and employees who use medical marijuana in compliance with state law.

Judge Robert Kugler noted that unless expressly provided for by statute, most courts across the country (including Washington, Michigan, Colorado, New Mexico, and California) have concluded that the decriminalization of medical marijuana does not shield employees from adverse employment actions. Ultimately, the court found that Ardagh was within its rights to refuse to waive a drug test for federally prohibited narcotics, and that the employee could not compel his employer to waive its requirement that he pass a drug test.

Employers should continue to monitor the expanding legalization of medical marijuana across the country and review their drug-testing policies and procedures with counsel for compliance with state statutes. Understanding the specific parameters of authorized marijuana activities in the state where employees work is paramount for employers

Endnotes:
1. Daniel Cotto Jr. v. Ardagh Glass Packaging, Inc., et al., No. 18-1037 (D.N.J. Aug. 10, 2018). 2. Noffsinger v. SSC Niantic Operating Co. LLC, 273 F. Supp. 3d 326 (D. Conn. 2017) (holding that federal law does not preempt a state law that expressly prohibits employers from firing or refusing to hire someone who uses marijuana for medical purposes); Barbuto v. Advantage Sales and Mktg., LLC, 78 N.E.3d 37 (Mass. 2017)(holding that an employee can survive a motion to dismiss if they are fired or otherwise punished for using medical marijuana, even though marijuana use is illegal under federal law)

Ruth A. Rauls is a partner at Saul Ewing Arnstein & Lehr LLP and member of the firm’s cannabis law practice, which counsels state cannabis license applicants and awardees, ancillary service and product providers, investors, management companies and various other entities that are affected by federal and state marijuana laws. She focuses her practice on litigation and employment-related matters. Gillian Cooper is an associate at Saul Ewing Arnstein & Lehr LLP and a member of the firm’s labor and employment law practice, developing policies and counseling employers on day-to-day issues that affect business operations.