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Editor’s note: The following article written by Ruth A. Rauls and Gillian A. Cooper was published as part of the Cannabis Law Committee Newsletter Vol. 2, No. 1 which was distributed to members of the Cannabis Law Committee. To learn more about joining a committee, email us as [email protected]

On March 27 of this year, the New Jersey Appellate Division reversed the lower court's dismissal of a complaint that alleged discrimination based on an employee's use of medical marijuana. In doing so, the Appellate Division held that employers may be required to accommodate an employee's use of medical marijuana. Accordingly, employers should take note of this decision in New Jersey regarding an employee's medical marijuana use and the interplay of the New Jersey Law Against Discrimination (NJLAD) and the New Jersey Compassionate Use Medical Marijuana Act.

In Wild v. Carriage Funeral Holdings, Inc., et al.,¹ the plaintiff sued his former employer, defendant Carriage Funeral Holdings, Inc., and others, alleging discrimination in violation of the NJLAD for his use of medical marijuana permitted by the Compassionate Use Act. As part of his cancer treatment, the plaintiff received a recommendation for the use of medical marijuana from a healthcare provider. In 2016, while working a funeral, the plaintiff's vehicle was struck by another vehicle that ran a stop sign. The plaintiff was taken by ambulance to the hospital. Carriage advised the plaintiff that a blood test was required before he could return to work. The plaintiff advised Carriage that he used medical marijuana for his disability.

Several days later, the plaintiff was informed that Carriage was unable to "handle" his marijuana use, and that his employment was "being terminated because they found drugs in [his] system." The plaintiff received a letter stating he had been terminated because he failed to disclose his use of medication that might adversely affect his ability to perform his job duties.

The plaintiff filed a lawsuit alleging the defendants violated the NJLAD because he had a disability (cancer) and was legally treating that disability in accordance with his physician's directions and in conformity with the Compassionate Use Act. The defendants filed a motion to
dismiss and the trial judge determined that the Compassionate Use Act "does not contain employment-related protections for licensed users of medical marijuana" and, in accepting the plaintiff's own allegations, the adverse employment action was taken due to a positive drug test
and a violation of Carriage's drug use policy.

The Appellate Division disagreed with the trial court, holding that just because the Compassionate Use Act states an employer is not required to accommodate a medical marijuana user, does not mean that such a requirement is not imposed by other legislation. Based on the allegations in the pleading, the Appellate Division concluded the plaintiff pleaded the elements of a prima facie case under the NJLAD. In reaching its decision, the Appellate Division discussed the Compassionate Use Act's interplay with the NJLAD. The Compassionate Use Act expressly declares that nothing about it "shall be construed to require ... an employer to accommodate the medical use of marijuana in any workplace." The plaintiff, however, was not seeking an accommodation to use medical marijuana in the workplace. Rather, he alleged that he sought an accommodation that would allow his continued use of medical marijuana "off-site" or during "off-work hours."

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. If an employee advises he or she uses medical marijuana, would fail a drug test, or refuses to take a drug test, employers should consult with counsel before taking disciplinary action.

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.

Endnote
1. A-3072-17T3 (App. Div. March 27, 2019).