Recently, in Wild v. Carriage Funeral Holdings, Inc., Docket No. A-3072-17T3, 2019 WL 1371206 (App. Div. Mar. 27, 2019), the New Jersey Appellate Division reversed the trial court’s dismissal of a discrimination complaint based on the employee’s legal use of medical cannabis under New Jersey’s Compassionate Use of Medical Marijuana Act (“CUMMA”).  In so holding, the court noted that CUMMA “does not immunize what the [New Jersey Law Against Discrimination (“LAD”)] prohibits” and held that a disabled employee may sue his or her former employer for disability discrimination based on the employee’s use of medical cannabis.

As we previously blogged, the plaintiff in Wild was a funeral director and a cancer patient who lawfully used medical cannabis during non-working hours.  The employee was involved in an accident which occurred during the course of his employment through no fault of his own and no alleged connection to his medical cannabis usage.  Before returning to work from the accident, the employee took a drug test pursuant to his employer’s policy.  Before taking the test, the employee’s father notified his employer that employee had a valid medical cannabis ID card from the New Jersey Department of Health.  A day after the test was conducted, the employee had a discussion with his manager about his medical cannabis usage.  Several days after this discussion, the employer terminated the employee because he failed to disclose the use of the medication (which might adversely affect his ability to perform his job) in violation of the employer’s drug and alcohol policy.

The employee filed suit against his former employer for violations under LAD, including disability discrimination and failure to accommodate.  He alleged that he had a disability (cancer) and was legally treating that disability in compliance with CUMMA.  In granting the employer’s motion to dismiss, the trial court held that CUMMA does not contain employment-related protections for medical cannabis users and no accommodations are required to be made in the workplace.  In so holding, the trial court relied upon the provision in CUMMA stating that “nothing in this act shall be construed to require . . . any employer to accommodate the medical use of marijuana in any workplace.”  N.J.S.A. 24:6I-14 (emphasis added).

In reversing the trial court’s decision, the Appellate Division found that the employee sufficiently pled a prima facie case for disability discrimination. The court reasoned that while CUMMA does not impose a duty to accommodate a medical cannabis user that does not mean that a duty to accommodate does not exist under another statute (i.e., LAD).  Indeed, the court specifically noted that CUMMA does not impact any existing employment rights or alter any provision of LAD.  The court also explicitly noted that the employee did not allege that he sought a workplace accommodation for his medical cannabis use, but instead sought an accommodation for his off-site medical cannabis use during non-working hours.

Significantly, the Appellate Division failed to mention the August 2018 federal district court decision in Cotto v. Ardagh Glass Packing, Inc., Civil No. 18-1037 (RBK/AMD), 2018 WL 3814278 (D.N.J. Aug. 10, 2018).  In that case, the court held that an employer was not required to accommodate a fork lift driver’s medical cannabis use, despite the fact that the driver’s doctor gave him a note stating that he could operate machinery while using his prescription.  In rejecting the fork lift driver’s claims under LAD, the district court reasoned that nothing in LAD or CUMMA required an employer to accommodate the use of medical cannabis in the workplace.

While the employee in Wild may not be able to ultimately prove his claims against his former employer, this recent decision affords New Jersey medical cannabis users, who suffer from adverse employment actions due to their lawful medical cannabis use, with the ability to pursue LAD claims against employers.  Employers should continue to follow any developments in the law and review their current anti-discrimination and drug and alcohol policies.  Employers with any questions should consult counsel to ascertain their specific rights and obligations, especially in light of the Wild decision.