On March 10, 2020, the New Jersey Supreme Court affirmed an appellate court decision that medical marijuana patients in New Jersey are protected from discrimination under the New Jersey Law Against Discrimination (“LAD”). Employees using medical marijuana now have further support for the viability of disability discrimination claims under the LAD which provides enhanced damages and additional remedies that other causes of action do not provide.
In Justin Wild v. Carriage Funeral Holdings, Inc., an employee, a funeral director, was terminated after his employer learned that he used medical marijuana to alleviate symptoms of cancer. The employee brought an action against his employer, alleging that his termination violated the LAD because he had a disability (cancer) and was legally treating that disability in accordance with his physician’s directions and in conformity with New Jersey’s then named Compassionate Use Medical Marijuana Act (“Compassionate Use Act”). The employer moved to dismiss the case for failure to state a claim, which was granted. The Appellate Division reversed and remanded the Superior Court’s decision, finding that the LAD and Compassionate Use Act were not in conflict, and that the employee alleged that the employer was aware of his disability and that he sought accommodation concerning his use of medical marijuana, as required to state a claim for violation of the LAD.
This past Tuesday, the New Jersey Supreme Court affirmed the Appellate Division holding that plaintiff stated a claim sufficient to survive defendant’s motion to dismiss and that there is no conflict between the Compassionate Use Act and the LAD. However, the Court declined to adopt the Appellate Division’s view that “the Compassionate Use Act intended to cause no impact on existing employment rights.” See 458 N.J. Super. at 428. The Court further noted that had the Legislature not enacted the Compassionate Use Act, plaintiff would have no LAD claim for disability discrimination or failure to accommodate following his termination.
While, in Wild, the Supreme Court found that the employee’s disability discrimination claim could proceed under the LAD, the Court did identify two potential defenses for other employers faced with a similar claim. Specifically, the Court noted that an employee’s claim may be “impacted” if the accommodation requested involves use of marijuana “in the workplace” or if the employee’s duties include operating, navigating, or being in actual physical control of any “vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of marijuana.”
The Wild decision is notable for employers as the more than 70,000 medical marijuana users in New Jersey have further support that they may have a cognizable claim against their employer for disability discrimination under the LAD. In addition, employees who use medical marijuana are also protected under statutory law. Last summer, the New Jersey legislature passed the Jake Honig Compassionate Use Medical Cannabis Act (“CUMCA”), which explicitly prohibits adverse employment actions based solely upon an employee’s status as a registered medical marijuana patient. Employees or job applicants who test positive for marijuana on an employer required drug test must be offered an opportunity to present a “legitimate medical explanation” for the positive test result in writing. In light of these recent developments, employers should consult with an experienced employment lawyer as to remain cautious and informed about their exposure to possible discrimination claims.
Wild v. Carriage Funeral Holdings, Inc., 205 A.3d 1144 (N.J. Super. App. Div. 2019), aff’d on other grounds, 082836, 2020 WL 1144882 (N.J. Mar. 10, 2020).