Last week, the New Jersey Supreme Court heard oral argument in Wild v. Carriage Funeral Holdings, a case our employment lawyers are watching closely. In this landmark case, the Supreme Court is considering whether the New Jersey Law Against Discrimination (“LAD”) requires employers to accommodate an employee’s off-duty use of medical marijuana.
In Wild, Justin Wild, a funeral director was diagnosed with cancer and approved to possess and use marijuana as permitted by the Compassionate Use Act. It was undisputed that Mr. Wild only used medical marijuana at home and not during working hours. While working at a funeral, Mr. Wild’s vehicle was struck when another vehicle ran a stop sign. Mr. Wild sustained injuries and was taken to a hospital. While at the hospital, Mr. Wild disclosed to his treating physician that he had a license to possess medical marijuana. The physician did not order any tests because it was clear to the physician that Mr. Wild was not under the influence of marijuana at the time.
Mr. Wild’s employer then told him that he would not be permitted to return to work until he passed a drug test. He was subsequently terminated for failing a drug test. Thereafter, Mr. Wild was told that he had been terminated not because of his drug use, but because he failed to disclose his use of medication, which might have adversely affected his ability to perform his job duties.
Mr. Wild filed a lawsuit and claimed that his employer could not lawfully terminate his employment without violating the LAD, 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 the Compassionate Use Act. The trial court dismissed his case and held that the LAD does not require employers to accommodate medical marijuana use. In so ruling, the trial court cited the Compassionate Use Medical Marijuana Act, which states that the law was not intended to require an employer to “accommodate the medical use of marijuana in any workplace.”
The Appellate Division reversed the trial court’s decision, and held that Mr. Wild had sufficiently established a presumption that he had been discriminated against under the LAD, and further held that the LAD may require an employer to accommodate medical marijuana during “off-work hours.”
While the case is still under review, and the Supreme Court is likely to issue further guidance, employers with drug testing policies should carefully review their policies to ensure compliance with New Jersey law. At a minimum, employees who fail routine drug tests for marijuana use, and claim they are authorized to use medical marijuana, should be permitted an opportunity to provide their employer with medical documentation.
That said, the law does not yet require employers to permit the use or possession of marijuana in the workplace or where allowing such use would violate federal law or a federal contract.
Given that the law in this area is rapidly evolving, it is highly recommended that employers speak with an attorney prior to terminating an employee for the use of medicinal marijuana. Likewise, if you are an employee who has been lawfully prescribed medicinal marijuana, and you have been fired, you should consult with an experienced employment attorney to understand your rights.
Our employment lawyers practice throughout the State of New Jersey. For more information on our Employment Law services or how we can provide assistance with your unique situation, please call us today at 609-348-1300 or email one of our employment lawyers.