On July 16, 2019, the New Jersey Supreme Court (“Court”) granted certification to review the Appellate Division’s decision in Wild v. Carriage Funeral Holdings, which ruled that the New Jersey Law Against Discrimination’s (“LAD”) requirement that employers reasonably accommodate disabilities applied to an employee’s use of medical cannabis legally prescribed pursuant to New Jersey’s Compassionate Use of Medical Marijuana Act (“CUMMA”^[1]). Employers may expect to see additional direction regarding their obligation to accommodate employees’ use of legally prescribed medical cannabis, particularly in light of amendments to CUMMA enacted after the Appellate Division’s decision.

In Wild, which we discussed in a recent client alert, plaintiff Justin Wild (“Wild”) alleged that his employer, Carriage Funeral Holdings (“Carriage Funeral”) failed to reasonably accommodate his disability (cancer) and unlawfully discharged him in violation of the LAD because he used medical marijuana, as legally permitted by CUMMA. Carriage Funeral terminated Wild’s employment after he tested positive for cannabis following an on-duty motor vehicle accident.

The trial court dismissed the lawsuit holding that the fact Wild tested positive for cannabis  constituted a legitimate business reason for his discharge because cannabis use (medical or otherwise) remains prohibited under federal law. In rendering its decision the trial court relied on a provision in the law stating that CUMMA did not require employers to reasonably accommodate licensed use of medical marijuana in the workplace. The Appellate Division reversed, holding that the fact that CUMMA did not “require” employers to accommodate an employee’s use of  medical marijuana in the workplace, did not affect an employer’s requirement under the LAD to reasonably accommodate an employee’s disability, which could include an employee’s off-duty and off-site use of medical cannabis.

As we recently reported, since the Appellate Division’s decision in Wild, New Jersey amended CUMMA. Among other things, the amendments (“Amendments”) prohibit employers from taking an adverse employment action^[2] against a current or prospective employee based upon the individual’s status as a “registered qualifying patient” of medical marijuana. The Amendments additionally require employers that maintain drug-testing policies to offer applicants and employees the right to respond, in specific ways, to a drug test that came back positive for cannabis. Of particular note, the Amendments deleted the provision in the original statute stating that nothing in the act imposed “an obligation on employers to accommodate an employee’s use of medical marijuana.” Court-watchers will certainly be curious to see if the Court addresses the issue of requiring employers to accommodate what is still considered a federal crime, and whether not an employer may plead that it is a per se hardship to require them to accommodate an employee’s illegal acts, such as the use of medical marijuana.

This post was written with assistance from Radhika Gupta, a 2019 Summer Associate at Epstein Becker Green.

[1] The amendments to the law changed the statute’s name to the “Jake Honig Compassionate Use of Medical Cannabis Act.”

[2] Under the Law, “adverse employment action” means “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.”