Labor & Employment Law

On August 10, 2018, the District Court for the District of New Jersey granted an employer’s motion to dismiss a lawsuit for disability discrimination, finding that neither the New Jersey Law Against Discrimination (“NJLAD”) nor the New Jersey Compassionate Use Medical Marijuana Act (“CUMMA”) require an employer to waive a drug test. By way of background, the plaintiff, Daniel Cotto (“Cotto”), a forklift operator, hit his head on a forklift and was subsequently asked by his employer, defendant Ardagh Glass Packing, Inc. (“Ardagh”), to take a drug test as a condition of continued employment. Cotto advised that he would not pass the drug test due to medically-prescribed drugs that he was taking, including medical marijuana. As a result of Cotto’s inability to pass the drug test, Ardagh placed him on indefinite suspension. Cotto sued Ardagh for disability discrimination, arguing that the decriminalization of medical marijuana under CUMMA, together with the protections of the NJLAD, compelled Ardagh to provide an accommodation for him, presumably by waiving the drug test.

In dismissing the Complaint, the Court found that CUMMA does not obligate employers to accommodate the medical use of marijuana in any workplace, and Ardagh was, therefore, within its rights to refuse to waive a drug test for federally-prohibited narcotics. Because the indefinite suspension resulted from the treatment (the medical marijuana use), not the disability itself, it was not discriminatory. While undue prejudice toward treatment for a disability can be deemed discrimination against the disability itself, the Court found that such was not the case where marijuana remains illegal under federal law. The Court found its holding to be consistent with most courts across the country that have concluded that, unless provided for by statute, the decriminalization of medical marijuana does not shield employees from adverse employment actions.

This is the first New Jersey decision on medical marijuana use in the workplace, and, although the decision is narrow, it provides guidance on how New Jersey courts may address medical marijuana in the workplace in the absence of express statutory guidance.

The number of authorized medical marijuana users in New Jersey is growing.  According to a 2017 Marist Poll, the number of adult Americans using marijuana is 22%.  Thus, employers should not be sitting idle, waiting for the decriminalization of recreational marijuana in New Jersey before making decisions regarding marijuana in the workplace.  Marijuana is already in the workplace.  Employers need to be proactive and should consider the following actions now:

  • Revisit drug-related policies – including, for example, to confirm that on-the-clock use or impairment is expressly prohibited.
  • Consider modifying or eliminating drug screens for marijuana, if appropriate.
  • Review job descriptions to ensure appropriate positions are properly identifiable as safety-sensitive.
  • Provide training to managers/supervisors on drug-related policies, as well as on the ability to spot physical manifestations of impairment.
  • To the extent possible, provide reasonable accommodations for an employee’s off-duty medical marijuana use and avoid related adverse employment actions, so long as doing so would not impact workplace safety or place the employer at risk of violating federal law or losing a federal contract or funding.
  • Document performance issues and do so consistently. Therefore, if someone who happens to be a medical marijuana cardholder is terminated for a legitimate, non-discriminatory reason, the employer has a defense to a subsequent allegation that the termination was discriminatory.
  • Apply all policies and procedures consistently.
  • Consult with legal counsel on the nuances of the changing landscape of New Jersey and federal law.
  • Consult with legal counsel if you are a multi-state employer as the laws in each state are drastically different.

While the likely decriminalization of recreational marijuana is all the buzz in New Jersey, employers cannot forget that they need to be prepared now to address an employee who is a medical marijuana card holder under New Jersey’s Compassionate Use of Medical Marijuana Act (CUMMA) to avoid inadvertent disability discrimination.

Under the Americans with Disabilities Act (ADA), there is no legal requirement to accommodate medical marijuana use because marijuana is illegal under federal law.  While CUMMA also states that “nothing [requires] an employer to accommodate the medical use of marijuana in any workplace,” it is not clear what this means for an employee’s off-duty medical marijuana use.  New Jersey also has pending legislation, Bill A1838, which establishes protection from adverse employment actions for authorized medical marijuana patients unless the use impairs the employee’s ability to perform job responsibilities.

Although New Jersey courts have not yet decided these issues as they relate to medical marijuana use under the New Jersey Law Against Discrimination (LAD), the LAD could also require employers to reasonably accommodate an employee’s off-duty medical marijuana use and may provide protection from adverse employment actions for such use.

Thus, unless an employee is using marijuana during work hours or showing up to work impaired – which no employer is obligated to tolerate – the best practice is to accommodate an employee and avoid any related adverse employment action, so long as doing so would not impact workplace safety.  Moreover, no employer would be obligated to place itself in violation of federal law or cause itself to lose a federal contract or funding.

Employers should consult counsel before making employment decisions related to off-duty medical marijuana use and should review their policies and job descriptions to ensure compliance with the changing legal landscape.

With the legalization of medical marijuana through New Jersey’s Compassionate Use of Medical Marijuana Act, and the decriminalization of recreational marijuana on the horizon, employers may want to revisit their drug screening policies and consider eliminating testing for marijuana for positions that are not safety-sensitive or subject to federal law mandating a drug-free workplace.

With the increasing number of authorized medical marijuana patients, and pending legislation that would render it illegal for an employer to take an adverse action against an authorized medical marijuana patient, eliminating or modifying marijuana screening may protect employers from inadvertently discriminating against an applicant or employee based on a disability.

Eliminating/modifying drug screens could also prevent employers from losing prime candidates for positions that are not safety-sensitive.  In fact, some employers are concerned that they would be unable to maintain staff if they declined to hire all qualified candidates that tested positive for marijuana.  This is particularly true where unemployment rates are low and, according to a 2017 Marist Poll, 22% of Americans use marijuana.

While employers who do not test risk workplace safety concerns/liability for employees who show up to work impaired as well as decreased productivity, it should be noted that marijuana screens detect the presence of marijuana in the system and not present impairment.  Accordingly, it may be more practical to train people to recognize when an employee is impaired at work as opposed to relying on a drug screen.

Marijuana policies will vary greatly depending on the nature of service an employer provides.  Employers should consult with their attorneys to decide how to approach marijuana policies and ensure compliance with the changing legal landscape.