The issue of whether an employer is required to accommodate an employee’s alleged disability by allowing the use of medical marijuana for chronic pain and waive the requirement that he pass a drug test as a condition of employment, was recently addressed by a New Jersey federal court. In Cotto, Jr. v. Ardagh Glass Packing, Inc., the plaintiff, a forklift operator, hit his head and was asked to take a drug test to continue his employment. The plaintiff employee told his employer that he could not pass a drug test because he used medical cannabis for pain management to recover from back and neck injuries. His employer responded that passing a drug test was a condition of his employment, and he was indefinitely suspended. The employee filed a lawsuit alleging that the New Jersey Law Against Discrimination (“NJLAD”) required that his employer waive the requirement that he pass a drug test as a condition of employment in order to accommodate his disability.
The employer filed a motion to dismiss the plaintiff’s complaint on the basis that the Compassionate Use Medical Marijuana Act (“Medical Marijuana Act”) did not require the employer to accommodate the employee and allow him to continue working while he was unable to pass a drug test based on the use of a substance that is illegal under federal law. The United States District Court for the District of New Jersey, Camden Vicinage, granted the employer’s motion to dismiss, finding that neither the Medical Marijuana Act nor NJLAD compelled the employer to waive the employee’s drug test requirement.
The Court stated that “[w]hat occasioned this dispute is conduct resulting from a treatment, not the disability itself.” (Emphasis added). The Court explained that the employer was prepared to accommodate the employee’s need to take Percocet, a legally prescribed drug, but not marijuana, an illegal drug under federal law, which appears to have played a significant role in the Court’s decision. Noting that although the New Jersey Medical Marijuana Act decriminalized the use of medical marijuana, it does not require “an employer to accommodate the medical use of marijuana in any workplace.” (N.J.S.A. 24:61-14). The Court surveyed cases across jurisdictions where medical cannabis is available and concluded that courts typically hold, unless a statute says otherwise, that “… decriminalization of marijuana does not shield employees from adverse employment actions.” The Court observed that although no New Jersey court has interpreted the statutory language to determine how it applies to a workplace discrimination claim, the Court predicted that the New Jersey judiciary would conclude the NJLAD does not require an employer to accommodate an employee’s use of medical marijuana with a drug test waiver. Both the employee and the employer argued their position based on pending and future proposed medical cannabis legislation, but the Court quickly dismissed those arguments, stating that “[a] legislature may refuse to enact a proposal just as swiftly as someone might turn down a wedding ring.”
In dismissing the plaintiff’s claim, the Court emphasized that its decision was a “narrow one,” and ultimately held only that “New Jersey law does not require private employers to waive drug tests for users of medical marijuana.”
This blog will continue to follow developments in New Jersey employment law based on the expansion of the Medical Marijuana program and the potential for legalized adult use cannabis.