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New Jersey Authorized Marijuana Users May Request Workplace Accomodation

By Edgar M. Rivera

On March 27, 2019, in Wild v. Carriage Funeral Holdings, Inc., the Superior Court of New Jersey Appellate Division reversed the trial court’s dismissal of plaintiff Justin Wild’s disability claim under the New Jersey Law Against Discrimination (“LAD”) against Carriage Funeral Holdings, Inc. (“Carriage”).  Carriage fired Mr. Wild, an authorized medical-marijuana user under the New Jersey Compassionate Use Medical Marijuana Act (the “Compassionate Use Act”), for using marijuana off duty as part of his cancer treatment.

The Compassionate Use Act, New Jersey’s medical marijuana law, was enacted in 2010.  Mr. Wild began working for Carriage as a licensed funeral director in 2013.  In 2015, he was diagnosed with cancer.  As part of his treatment, Mr. Wild’s physician prescribed marijuana as permitted under the Compassionate Use Act.  In May 2016, a vehicle ran a stop sign and struck Mr. Wild while he was driving for a funeral job.  Injured, Mr. Wild was taken by an ambulance to a hospital emergency room. At the hospital, Mr. Wild advised a treating physician that Mr. Wild had a license to possess medical marijuana.

Days later, Carriage spoke with Mr. Wild’s father to advise that Mr. Wild could not return to work unless he submitted to a drug test.  Mr. Wild took the test and, a few weeks later, Carriage fired him because “they found drugs in his system.”  Mr. Wild has a prescription for the drugs for which he tested positive.  Mr. Wild later received a letter from Carriage stating a different reason for his termination; the stated that Mr. Wild was being terminated for failing to disclose his use of medication, which might adversely affect his ability to perform his job duties.  According to a Carriage policy, “employees must advise their immediate supervisor if they are taking any medication that may adversely affect their ability to perform assigned duties safely.”  A couple months after his termination, plaintiff learned of a third purported reason for his termination—a rumor was going around the funeral home that Mr. Wild was fired because he was a “drug addict.”

On appeal, Mr. Wild argued that Carriage could not lawfully terminate his employment without violating the LAD, despite the results of his drug test, because he had a disability (cancer) and was legally treating that disability.  The appellate court agreed.

First, the appellate court found that the language of the Compassionate Use Act—“nothing in this act shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace”—did not create or negate any rights or claims available under the LAD.  As such, the only inquiry was whether plaintiff had stated a claim under the LAD.   The appellate court found that he did, as he had pled that Carriage was aware of his disability and had terminated him because of the medication he was using to treat his disability.

Partially in response to the Wild case, on July 2, 2019, New Jersey Governor Phil Murphy signed into law the Jake Honig Compassionate Use Medical Cannabis Act, which amends the Compassionate Use act by, among other things, providing greater clarity regarding the implications of the use of medical marijuana by employees and applicants.  The July 2 amendments took effect immediately.

The amendments delete the confusing language that was the subject of the Wild case and adopt two provisions expressly protecting employees.  First, the amendments prohibit employers from taking any “adverse employment action” against an employee who is a “registered qualifying patient” based “solely on the employee’s status as a registrant with the commission.” A “registered qualifying patient” is an individual who both (1) has been authorized by a health care provider for the medical use of cannabis, and (2) has registered with the state’s Cannabis Regulatory Commission.

Second, the amendments provide workers with the right to explain positive drug test results. If an employee or job applicant tests positive for marijuana under an employer’s drug testing policy, the employee or job applicant must have the opportunity to present a “legitimate medical explanation” for the test result. The employer must then provide the employee or job applicant written notice of this right to explain and, within three working days of receiving the written notice, the employee or job applicant can submit information to the employer to explain the positive test result.  Alternatively, within the same three-working-day period, the employee or applicant may request a confirmatory retest of the original sample at the employee or job applicant’s own expense.

At The Harman Firm, LLP, we support users of medical marijuana.  If you believe you have been discriminated against because of your disability or lawful use of medical marijuana, contact The Harman Firm, LLP.

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