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Court Dismisses NJ Medical Marijuana Patient’s Disability Lawsuit


September 7, 2018
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Courts Continue to Send Mixed Signals Regarding the Use of Medical Cannabis in the Workplace as a Medical Cannabis Patient’s Disability Lawsuit was Recently Dismissed

Courts continue to send mixed signals to employers and employees regarding the use of medical cannabis in the workplace. In Cotto v. Ardagh Glass Packaging, Inc., a federal judge ruled that the Compassionate Use of Medical Marijuana Act does not compel a New Jersey employer to waive mandatory drug testing requirements for a disabled worker.

Court Dismisses NJ Medical Marijuana Patient’s Disability Lawsuit

Photo courtesy of Matteo Paganelli (Unsplash.com)

Facts of Cotto v. Ardagh Glass Packaging, Inc.

After Plaintiff Daniel Cotto, Jr. hit his head on a forklift while at work, his employer, Ardagh Glass Packaging, Inc. (Ardagh Glass), asked him to take a drug test as a condition of continued employment. Cotto told his employer that he could not pass a drug test because he takes several medically-prescribed drugs, including Percocet and medical marijuana, to treat chronic pain associated with a back injury he sustained in 2007. According to Cotto, his employer was previously aware that he had been prescribed medical cannabis. Cotto had also provided documentation from his doctor attesting that he could safely operate equipment while taking these medications.

Ardagh Glass informed Cotto that it could not allow him to continue working there unless he tested negative for marijuana. As a result, he remained on indefinite suspension as a consequence of not satisfying this condition of employment. Cotto subsequently filed suit, arguing that Ardagh Glass’ failure to allow him to return to work constitutes disability discrimination. He maintains that the decriminalization of medical marijuana under the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), together with the New Jersey Law Against Discrimination (LAD), compels his employer to provide an accommodation for him.

Court Sides with NJ Employers

U.S. District Judge Robert Kugler dismissed the suit. In support, he cited that neither the LAD and CUMMA require an employer to waive a drug test as a condition of employment for federally-prohibited substance. “We therefore find that Plaintiff has failed to show that he could perform the ‘essential functions’ of the job he seeks to perform. Ardagh Glass is within its rights to refuse to waive a drug test for federally-prohibited narcotics,” Kugler ruled.

In reaching his decision, Judge Kugler found that it was understandable that Ardagh Glass took a more permissive stance toward Cotto’s use of Percocet, as compared to medical marijuana. He noted that “federal law allows Percocet to be used with a prescription but continues to regard marijuana as having no accepted medical use.”

Judge Kugler also determined that CUMMA neither supported or hindered Cotto’s claim. In addition to noting that the law specifically excludes employers from its scope, Judge Kugler also found that “[n]othing in the cited language supports a finding that CUMMA, working alongside LAD, somehow leads to an emergent, penumbral law.”

Judge Kugler acknowledged that New Jersey courts have not yet addressed how the legalization of medical cannabis impacts the LAD. However, he highlighted that several other state courts have ruled that marijuana decriminalization does not shield employees from adverse employment actions.

“This Court predicts that the New Jersey judiciary would reach a similarly obvious conclusion: the LAD does not require an employer to accommodate an employee’s use of medical marijuana with a drug test waiver,” Judge Kugler wrote. “Although no court has expressly ruled on this question, New Jersey courts have generally found employment drug testing to be unobjectionable in the context of private employment.”

Judge Kugler also found current legislation addressing cannabis in the workplace to be unpersuasive. “Proposed amendments are just that: proposals,” he wrote. “A legislature may refuse to enact a proposal just as swiftly as someone might turn down a wedding ring.”

Conflicting Medical Marijuana Decisions

Other courts have reached conflicting conclusions regarding the impact of medical cannabis legalization on employee rights. Last month, a New Jersey Workers’ Compensation Judge held that Freehold Township must pay for an injured worker’s medical marijuana treatment. In that case, the judge rejected the argument that it’s unconstitutional for a court to order an insurance carrier to pay for treatment because it conflicts with federal law.

Until the federal government legalizes cannabis and/or the State of New Jersey passes legislation addressing the interplay between CUMMA and state employment laws, this area of law will continue to be riddled with uncertainty. Scarinci Hollenbeck will continue to track updates on this matter.

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, Dan McKillop, 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:

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