UNDER NEW JERSEY’S LAW AGAINST DISCRIMINATION, AN EMPLOYER MAY BE HELD LIABLE FOR TERMINATING AN EMPLOYEE BECAUSE OF THEIR LAWFUL USE OF MEDICAL MARIJUANA

The Law Against Discrimination (“LAD”) was designed to protect employees in New Jersey from discrimination in the workplace, including, but not limited to, disability discrimination. N.J.S.A. 10:5-12(a). The LAD also requires an employer to provide a disabled employee with a reasonable accommodation “unless the nature and extent of the disability reasonably precludes the performance of the particular employment.” N.J.S.A. 10:5-4.1. However, until recently, an employer could openly discriminate against an employee for using medical marijuana to treat a medical condition. See Cotto v. Ardagh Glass Packing, 2018 U.S. Dist. LEXIS 135194 (D.N.J. August 10, 2018). In fact, New Jersey case law has said an employer is not required to accommodate an employee’s use of medical marijuana to treat an illness. Id. This is because the New Jersey Compassionate Use Medical Marijuana Act (“CUMMA”) specifically states “[n]othing” in the CUMMA “require[s] an employer to accommodate a medical marijuana user.” N.J.S.A. 24:6I-14.

Notably, CUMMA was enacted because the New Jersey Legislature determined “[m]odern medical research has discovered a beneficial use for marijuana in treating or alleviating the pain or other systems associated with certain debilitating medical conditions.” N.J.S.A. 24:6I-2(a). One of CUMMA’s professed purposes is “to protect from arrest, prosecution … and other penalties, those patients who use marijuana to alleviate suffering from debilitating medical conditions…” N.J.S.A. 24:6I-2(e).

In our blog article of January 11, 2019 entitled “Medical Marijuana Can Cost Workers Their Jobs, But Laws Are Coming To Correct This Wrong”, we discussed pending State Assembly Bill 1838 and State Senate Bill S10 which, if enacted, would prevent employers in New Jersey from firing an employee for using medical marijuana unless the employer was able to produce evidence showing that such use impaired the employee’s ability to perform their job in a safe and effective manner. Now, it appears state case law maybe moving in the same direction as this pending legislation. We state this because the New Jersey Appellate Division in Wild v. Carriage Funeral Holdings, Inc., 2019 N.J. Super. LEXIS 37 (App. Div. March 27, 2019) recently held that the LAD prohibits disability discrimination, including discriminating against an employee who lawfully uses marijuana for medicinal purposes.

In Wild, the plaintiff worked at Carriage Funeral Holdings, Inc. (“Carriage”) for several years. Id. at *6. In 2015, the Plaintiff Wild was diagnosed with cancer and as a result he was prescribed medical marijuana. Id. A few months later, the plaintiff was involved in a car accident where he sustained injuries that required him to go to the emergency room. Id. At the hospital, the plaintiff told the doctor that he had a license to possess medical marijuana. Id. As a result, the doctor did not require the plaintiff to undergo a blood test. Id. Afterwards, the plaintiff’s father took the plaintiff’s medication to Carriage and informed them that the plaintiff had a license to take medical marijuana. Carriage refused to allow the plaintiff to return to work until he went for the blood test. Id. at *7. The plaintiff went for the blood test and waited to hear from Carriage if he could return to work. Id. at *8. The plaintiff was then contacted by Carriage and informed that he was being terminated because of his marijuana use. Id.

Plaintiff Wild filed a lawsuit against Carriage alleging, among other things, various LAD violations, including discrimination based on his medical marijuana use and failure to provide a reasonable accommodate. Id. The trial court dismissed the plaintiff’s disability discrimination claims based on language in the CUMMA that states the Act does not require an employer to accommodate an employee. The plaintiff then appealed. In reversing the trial court’s dismissal of Plaintiff Wild’s Complaint, the Appellate Division held that the CUMMA does not immunize what the LAD already prohibits, which is discrimination on the basis of one’s disability. Id. at *20. The appellate court reasoned that even though CUMMA states nothing in the Act requires an employer to accommodate a medical marijuana user, it does not mean the LAD “may not impose such an obligation, particularly when the declination of an accommodation to such a user relates only to use ‘in any workplace.’” Id. The appellate court further opined that, “[i]t would be ironic indeed if the [CUMMA] limited the [LAD] to permit an employer’s termination of a cancer patient’s employment by discriminating without compassion.” Id. at *2.

Because of the appellate court decision in Wild, the door may now be open for employers in New Jersey to be liable under the LAD for discriminating and/or otherwise failing to accommodate an employee’s lawful use of medical marijuana.

If you have been terminated or refused a reasonable accommodation because of your use of medical marijuana, then call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, we are all well experienced in handling discrimination cases and will aggressively seek to discover the evidence required to get your claim to a jury. Mashel Law, located in Morganville, New Jersey, is dedicated to protecting the rights of employees.