In Wild v. Carriage Funeral Holdings Inc., the New Jersey Appellate Division reinstated a discrimination claim under the New Jersey Law Against Discrimination (NJLAD) after the trial court ruled it could not proceed because nothing in the state’s Compassionate Use of Medical Marijuana Act requires an employer to accommodate a medical marijuana user. According to the appellate court, just because the Compassionate Use Act declared it should not be construed to "require" an accommodation does not mean such a requirement might not be imposed by other legislation.  Specifically, the court in Wild noted 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.”

New Jersey Compassionate Use Act

The New Jersey Compassionate Use of Medical Marijuana Act (Compassionate Use Act) establishes an affirmative defense for patients who are properly registered but are subsequently arrested and charged with marijuana possession. The statute also shields qualifying users from civil penalties and other administrative actions. However, the Compassionate Use Act expressly states: "Nothing in this act shall be construed to require…an employer to accommodate the medical use of marijuana in any workplace."

Medical Marijuana User Alleges Wrongful Termination

The Wild case arose when Plaintiff Justin Wild sued his former employer, defendant Carriage Funeral Holdings, Inc. (Carriage), under the NJLAD.  The suit alleged that the unlawful discrimination stemmed from Wild’s use of medical marijuana, permitted by the Compassionate Use Act, as part of his cancer treatment.

In 2013, Wild began working for Carriage as a licensed funeral director. In May 2016, while working a funeral, a vehicle he was driving was struck by a vehicle that ran a stop sign. Sustaining injuries, Wild was taken by ambulance to a hospital emergency room. At the hospital, the plaintiff advised a treating physician that he had a license to possess medical marijuana. The physician responded that "it was clear [plaintiff] was not under the influence of marijuana, and therefore no blood tests were required."

Carriage learned of Wild’s medical marijuana use following the accident. Wild informed his employer that he used marijuana to alleviate his cancer pain, but only did so during non-work time. Carriage required Wild to take a blood test prior to returning to work. Wild appeared for a blood test and explained that he would test positive because of the prescribed marijuana and pain killers he was prescribed following the accident. 

In a letter dated June 3, 2016,  Carriage advised Wild he was being terminated. The letter stated that Wild was not being terminated due to his use of medicinal marijuana, but for his failure to disclose his use of the medication, which might adversely affect his ability to perform his job duties. According to a Carriage company policy, "employees must advise their immediate supervisor if they are taking any medication that may adversely affect their ability to perform assigned duties safely."

After being terminated by Carriage, Wild subsequently filed suit. Among the allegations in his complaint, Wild claimed Carriage could not lawfully terminate his employment without violating the NJLAD. In particular, Wild alleged that terminating him violated the NJLAD despite the results of his failed drug test because he had a disability (cancer) and was legally treating that disability, in accordance with his physician's directions and in conformity with the Compassionate Use Act. In granting defendants' motion to dismiss, the trial judge determined that the Compassionate Use Act "does not contain employment-related protections for licensed users of medical marijuana" and, in accepting the plaintiff's own allegations, the adverse employment action was taken due to a positive drug test and a violation of Carriage's drug use policy.

Appellate Division Reinstates NJLAD Claim

The Appellate Division reversed the decision of the trial court.  In doing so, the Appellate Division held that the Compassionate Use Act's refusal to require an employment accommodation for a medical marijuana user does not mean that the Compassionate Use Act has immunized employers from obligations already imposed under other statutes, such as the NJLAD.  Specifically, the appellate court noted that “[i]n short, like the first law of thermodynamics, that provision – beyond its own limited criminal and regulatory context – neither creates nor destroys rights and obligations.”

The court further explained:

The Compassionate Use Act neither created new employment rights nor destroyed existing employment rights; it certainly expressed no intent to alter the LAD. Just as the Compassionate Use Act imposes no burden on defendants, it negates no rights or claims available to the plaintiff that emanate from the LAD.

The Appellate Division went on to conclude that Wild had pled the prima facie elements of a claim under the NJLAD, which was sufficient to avoid dismissal at this stage of the case.   In particular, Wild alleged that he was disabled due to his cancer diagnosis, he was able to continue to work as a funeral director and his employment had been terminated.

Key Takeaway for New Jersey Employers

Employment disputes over the use of medical marijuana are on the rise both in New Jersey and around the country.  The outcomes of these disputes, however, have been mixed for both workers and employers.

In Cotto v. Ardagh Glass Packaging, Inc., a case decided by a federal district court in New Jersey last summer,  the court ruled that the Compassionate Use Act does not compel a New Jersey employer to waive mandatory drug testing requirements for a disabled worker. In contrast, the Appellate Division ruled in Wild v. Carriage Funeral Holdings Inc. that while the Compassionate Use Act allows employers to ban the use of medical marijuana at work, terminating an employee for using legally-prescribed medical marijuana during non-work hours may expose employers to liability under the NJLAD.

Until the federal government legalizes cannabis and/or the State of New Jersey passes legislation addressing the interplay between the Compassionate Use Act and state employment laws, this area of law will continue to be riddled with uncertainty. The attorneys of the Scarinci Hollenbeck Cannabis Law Group will continue to track updates on this evolving area of law.

If you have any questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Gregg Hilzer, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.

Disclaimer: Possession, use, distribution, and/or sale of cannabis is a Federal crime and is subject to related Federal policy. Legal advice provided by Scarinci Hollenbeck, LLC is designed to counsel clients regarding the validity, scope, meaning, and application of existing and/or proposed cannabis law. Scarinci Hollenbeck, LLC will not provide assistance in circumventing Federal or state cannabis law or policy, and advice provided by our office should not be construed as such.