In the most significant decision to date in the medical marijuana context, the New Jersey Supreme Court recently confirmed that a plaintiff under the New Jersey Law Against Discrimination (“LAD”) can state a viable claim for discrimination related to lawful use of medical marijuana.  On March 10, 2020, the Supreme Court in Wild v. Carriage Funeral Holdings, Inc. (A-91-18) affirmed the judgment of the New Jersey Appellate Division allowing a plaintiff’s LAD claim based on his allegation that he was terminated for lawful medical marijuana use to proceed to the merits.

In Wild, the plaintiff, a licensed funeral home director, alleged that he lawfully (and privately) used medical marijuana during non-work hours to treat his cancer.  His employer learned that he was using medical marijuana and, as plaintiff alleges, terminated him without attempting to discuss an accommodation.  The plaintiff filed a lawsuit alleging that his termination was unlawful disability discrimination under LAD.  At the trial court level, the funeral home defendant filed a motion to dismiss, arguing that under the Compassionate Use Act (the statute allowing medical marijuana in New Jersey), N.J.S.A. 24:6I-14, employers were not required to accommodate an employee who used medical marijuana.  The trial court agreed and dismissed the plaintiff’s LAD claim.

The plaintiff appealed the dismissal to the Appellate Division, which reversed in a published opinion and reinstated the plaintiff’s lawsuit.  458 N.J. Super. 416 (App. Div. 2019).  The Appellate Division did so for two primary reasons.  First, the Appellate Division held that the plaintiff had appropriately pled facts demonstrating that his employer knew of his disability and refused to engage in any meaningful process to discuss an accommodation for his disability.  Second, the Appellate Division determined that there was no conflict between LAD and the Compassionate Use Act because based on the allegations the plaintiff was not using medical marijuana in the workplace and instead, he was using medical marijuana during off-hours.

The New Jersey Supreme Court granted certification of the case and heard oral argument earlier this year.  The Supreme Court affirmed nearly the entirety of the Appellate Division’s opinion.  The Supreme Court found that there is no conflict between the Compassionate Use Act and LAD when the plaintiff alleges that the use of medical marijuana was outside of the workplace.  The Supreme Court further stated that there may be circumstances where the Compassionate Use Act could impact an individual’s rights under LAD where the use of medical marijuana was during work hours or involved operating heavy machinery.  The Supreme Court declined to go into detail on those issues, stating that the factual record was not developed enough in the Wild case.

The Supreme Court’s decision confirms that employees in New Jersey who lawfully use medical marijuana may have discrimination claims against their employer if they are terminated on the basis of medical marijuana use.  In this case, Plaintiff’s complaint was dismissed on Defendant’s motion to dismiss so there was no factual record developed. The full extent of those rights remains to be seen and will likely be further developed in cases where the facts are developed in discovery and the court can examine the issue on a full factual record.  At present, it is important for employers to recognize the new protections that are being afforded to employees who use medical marijuana.  Employers should consult with counsel prior to taking action related to any such employees.