A New Jersey appellate court has held that a disabled employee may sue his former employer under the New Jersey Law Against Discrimination (“NJLAD”) for alleged discrimination based on the employee’s use of medical marijuana. Wild v. Carriage Funeral Holdings, Inc., et al., Docket No. A-3072-17T3 (N.J. App. Div. Mar. 27, 2019). Although the New Jersey Compassionate Use Of Marijuana Act (“NJCUMMA”) does not prohibit employment discrimination based on medical marijuana use, the Court held that the NJCUMMA does not immunize “employers from obligations already imposed elsewhere [such as under the NJLAD].”

Plaintiff Wild, a licensed funeral director, brought an action against Carriage Funeral Holdings, Inc. and others alleging that he was unlawfully discriminated for his use of medical marijuana permitted by the NJCUMMA. A physician prescribed Wild medical marijuana as part of his treatment for cancer. In May 2016, Wild was involved in a car accident while working a funeral. Wild was taken to the hospital and claimed that the doctor who treated him stated that Wild was not under the influence of drugs or alcohol, so a blood test was not necessary. The day after the accident, Carriage advised that a blood test was required before he could return to work, and Wild’s father disclosed Wild’s use of medical marijuana. Later that evening, Wild submitted to a urine and breathalyzer test at a local urgent care facility. However, Wild never received the results of the tests and they were not made part of the record.

The next day, Wild returned to the funeral home to attend the services of a close friend’s family member. While there, he spoke to his employer about his off-work medical marijuana use to treat severe pain. The following week, Wild worked a funeral for a few hours and then went home because he was “very sore.” Several days later, Wild was informed that “corporate” was unable to “handle” his marijuana use and his employment “was being terminated because they found drugs in [his] system.” Thereafter, Carriage informed Wild in a letter that he was not terminated because of his drug use, but because he failed to disclose his use of a medication that might adversely affect his ability to perform his job duties in accordance with company policy.

Wild filed a lawsuit claiming that Carriage could not lawfully terminate his employment without violating NJLAD, despite the results of his drug test, because he had a disability (cancer) and was legally treating that disability in accordance with the NJCUMMA. In granting Carriage’s motion to dismiss, the lower court determined that the NJCUMMA “does not contain employment-related protections for licensed users of medical marijuana” and, as set forth in Wild’s allegations, the adverse employment action was taken due to a positive drug test and a violation of Carriage’s drug policy. However, the appeals court determined that Wild sufficiently pled the elements of a prima facie case for disability discrimination, reversed the lower court’s decision to dismiss, and remanded the case for further proceedings.

The appeals court explicitly held that there was no conflict between the NJLAD and the NJCUMMA. The NYCUMMA states that “[n]othing in this act shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace.” But the court held that this language “can mean only one thing: the [NJCUMMA] intended to cause no impact on existing employment rights.” Moreover, the NJCUMMA neither created new employment rights nor destroyed existing employment rights – and it certainly expressed no intent to alter the NJLAD. The court stated that “[i]t would be ironic indeed if the Compassionate Use Act limited the Law Against Discrimination to permit an employer’s termination of a cancer patient’s employment by discriminating without compassion.”

Wild did not assert his claims under the NJCUMMA; rather, he asserted disability discrimination claims under NJLAD. Many of his allegations concerned his “disability,” without specific reference to his cancer or his medical marijuana use. At this early stage of the lawsuit, however, he was not required to prove his claims and those general allegations were enough to withstand a motion to dismiss.

The Wild court completely ignored a recent federal court decision in New Jersey, Cotto v. Ardagh Glass Packaging, 2018 U.S. Dist. LEXIS 135194 (D.N.J. August 10, 2018) (which we blogged about here). That court held that neither the NJLAD nor the NJCUMMA compels an employer to waive its requirements for employees to pass drug tests, even when those drug tests include testing for marijuana. The Cotto court found it significant that the NJCUMMA does not provide any employment protections for medical marijuana users, and predicted that the New Jersey judiciary would conclude that the NJLAD does not require an employer to accommodate an employee’s use of medical marijuana with a drug test waiver. The Cotto court’s prediction apparently was wrong, although it is far from clear whether Wild will be able to prove his claims.

The important takeaway for employers is that even in states where the medical marijuana law offers no employment protections, disabled employees and applicants may refashion their legal claims as ordinary disability discrimination claims.