, according to a recent decision by the Supreme Court of New Jersey. The court’s decision in Justin Wild v. Carriage Funeral Holdings, Inc. will allow a fired funeral director to pursue a disability discrimination claim under the New Jersey Law Against Discrimination (LAD).

Employee Fired for Medical Marijuana Use

Plaintiff Justin Wild sued his former employer, defendant Carriage Funeral Holdings, Inc. (Carriage), under the New Jersey Law Against Discrimination (NJLAD). His suit alleges that Carriage unlawfully terminated him for using medical marijuana, which is permitted by the Compassionate Use Medical Marijuana Act (CUMMA).

While working for Carriage as a licensed funeral director, Wild was involved in a motor vehicle accident. At the hospital, Wild 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.

Wild’s boss, Defendant David Feeney, informed Wild that he would need to pass a drug test to return to work. The following week, Wild worked at a funeral. Several days later, Feeney told Wild that “corporate” was unable to “handle” his marijuana use and that his employment was “being terminated because they found drugs in your system.” In a June 3, 2016 letter, Carriage advised Wild he was being terminated. The letter stated that the reason was not Wild’s marijuana use, but his failure to disclose his use of medication that might adversely affect his ability to perform his job duties. According to a Carriage policy, "employees must advise their immediate supervisor if they are taking any medication that may adversely affect their ability to perform assigned duties safely." 

Following his termination, Wild learned that a rumor that he was a “drug addict” was circulating at the Bergen County Funeral Directors’ Association meeting. Wild subsequently filed suit. Among other allegations, Wild claimed Carriage could not lawfully terminate his employment without violating the NJLAD, despite the results of his 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 CUMMA.

While the trial court dismissed Wild’s LAD suit, the Appellate Division reversed. “[W]e reject the essential holding that brings this matter here and conclude that the Compassionate Use Act’s refusal to require an employment accommodation for a user does not mean that the Compassionate Use Act has immunized employers from obligations already imposed elsewhere,” Judge Clarkson Fisher Jr. wrote. “It 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.”

In reaching its decision, the Appellate Division held that CUMMA’s refusal to require an employment accommodation for a medical marijuana user does not mean that the statute has immunized employers from obligations already imposed under other statutes, such as the NJLAD. “The Compassionate Use Act neither created new employment rights nor destroyed existing employment rights; it certainly expressed no intent to alter the LAD,” Judge Fisher explained. “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.”

New Jersey Supreme Court Gives Green Light to Discrimination Suit

The New Jersey Supreme Court affirmed the Appellate Division judgment substantially for the reasons expressed in that court’s opinion. However, it declined to adopt the Appellate Division’s view that “the Compassionate Use Act intended to cause no impact on existing employment rights.”

In its per curium opinion, the state’s highest court agreed that there is no conflict between CUMMA and the LAD. However, it disagreed with the Appellate Division’s conclusion that CUMMA did not intend to impact on existing employment rights. As the court explained:

The Appellate Division correctly identified plaintiff’s disability discrimination and failure to accommodate causes of action as LAD claims to be evaluated under LAD standards; however, the Compassionate Use Act does have an impact on plaintiff’s existing employment rights. In a case such as this, in which plaintiff alleges that the Compassionate Use Act authorized his use of medical marijuana outside the workplace, that Act’s provisions may be harmonized with the law governing LAD disability discrimination claims.

The New Jersey Supreme Court went on to highlight that two CUMMA provisions “may affect a LAD discrimination or failure to accommodate claim in certain settings.” In N.J.S.A. 24:6I-14 (2018), the Legislature provided that “[n]othing in [the Compassionate Use Act] shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace.” In N.J.S.A. 24:6I-8 (2018), the Legislature further stated in part that the Act “shall not be construed to permit a person to: a. operate, navigate or be in actual physical control of any vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of marijuana.” According to the court, “To the extent that the circumstances surrounding a LAD disability discrimination claim were to implicate one or both of those provisions of the Compassionate Use Act, the Act would have an impact on that claim.”

Key Takeaways

The New Jersey Supreme Court’s decision is significant in that it creates new legal protections for medical marijuana users. As Attorney General Gurbir Grewal noted in a press statement, the ruling means "New Jersey’s Law Against Discrimination allows employees with disabilities to sue for discrimination if their employers refuse to reasonably accommodate their need for lawful medical treatment, including medical marijuana in certain circumstances."

The Jake Honig Compassionate Use Medical Cannabis Act amended CUMMA to include express employment protections.  It is now unlawful for an employer to take any adverse employment action against an employee who is a registered qualifying patient based solely on the employee’s status as a registry identification cardholder. An “adverse employment action” is defined as 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. The New Jersey Supreme Court’s decision ensures workers who entered the Medical Marijuana Program prior to the amendments and suffered discrimination, such as wrongful termination, may pursue lawsuits.

If you have questions, please contact us

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

This article is a part of a series pertaining to cannabis legalization in New Jersey and the United States at large. Prior articles in this series are below:

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.