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Employees using Medicinal Marijuana: Protected against Prosecution but Not Termination

Jessica Ellis

On August 10, 2018, in Cotto, Jr. v. Ardagh Glass Packing, Inc., the United States District Court of New Jersey held that New Jersey law does not require private employers to waive drug tests as an accommodation for employees using medicinal marijuana.

In 2007, Plaintiff Daniel Cotto, Jr. was prescribed medicinal marijuana to treat a neck and back injury, which he disclosed to Ardagh Glass Packing, Inc. (“Ardagh”) when he was hired as a forklift driver.  In 2016, Mr. Cotto hit his head on a forklift, and Ardagh asked him to take a drug test before returning to work.  As a user of medical marijuana, Mr. Cotto told his employer that he would not be able to pass the test.  Ardagh, however, told Mr. Cotto he could not continue working there unless he tested negative for marijuana. Consequently, on December 1, 2016, Ardagh suspended Mr. Cotto for an indefinite period of time.

Mr. Cotto claimed that Ardagh discriminated against him based on his disability. He argued that the decriminalization of medicinal marijuana under the New Jersey Compassionate Use Medicinal Marijuana Act (CUMMA), together with the New Jersey Law Against Discrimination (LAD), required employers to waive the requirement of passing a drug test for a medical marijuana user. The Court disagreed.

While Mr. Cotto’s neck and back injury rendered him disabled under the LAD, the Court found that he failed to show that his employer discriminated against him. Guiding the Court’s reasoning was New Jersey courts’ interpretation of the LAD, which noted:

It is almost the universal view that the federal laws are intended to prevent discrimination premised upon a handicap or disability, not upon egregious or criminal conduct even if such conduct results from the handicap or disability.

Because Congress has classified marijuana as a Schedule 1 substance, the Court found Ardagh’s restrictive stance on marijuana “understandable.” Further, when considering CUMMA, the Court found that the purpose of the act is to “protect from arrest, prosecution, property forfeiture, and criminal and other penalties those patients who use marijuana…”, not employees from discrimination. In fact, CUMMA, specifically states it cannot be construed to require “an employer to accommodate the medical use of marijuana in the workplace.” Finally, although no court has addressed CUMMA’s effects on the LAD, most courts have considered similar states in other states concluded that the decriminalization of medical marijuana does not shield employees from adverse employment action.

For employees using medicinal marijuana for mental health reasons, this holding is frightening as it means that an employee may be forced to choose between not taking his or her medication or getting fired if his or her employer makes continued employment contingent on passing a drug test. According to the Psychiatric Times, patients taking medicinal marijuana have reported improvements in their PTSD symptoms, anxiety, depression, ADHD, bipolar disorder, chronic pain, insomnia, opiate dependence, and even schizophrenia. Though some may argue that there are other ways of treating mental health, medicinal marijuana has proven to be an effective method in psychiatric practice.  The Court’s ruling in this case, however, casts serious doubts that employees who use medicinal marijuana and are subsequently terminated for failing a drug test will be successful in bringing forth disability claims.  At The Harman Firm, LLP, we support employees who use medical marijuana.  If you believe you have been discriminated against because of your disability, contact The Harman Firm, LLP.

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