N.J. Worker Fired for Medical Marijuana Use Can Pursue Disability Discrimination Claim

The New Jersey Supreme Court has ruled that an employee can pursue a disability discrimination claim under the New Jersey Law Against Discrimination (NJLAD) after being fired due to his legal use of medical marijuana outside of work. This decision could provide some clarity in how medical marijuana use by employees outside of work should be handled by New Jersey employers.

The decision comes after plaintiff Justin Wild brought an unlawful discrimination suit against his former employer, Carriage Funeral Holdings Inc., and others under NJLAD after he was fired following a drug test that showed positive for marijuana use.

Wild alleged that he began working for Carriage in 2013 as a licensed funeral director, and in 2015, he was diagnosed with cancer. As part of his treatment, his physician prescribed marijuana as permitted by the New Jersey Compassionate Use Medical Marijuana Act. Wild claimed that he only used marijuana legally off-site and outside of working hours.

While working at a funeral in May 2016, a vehicle being driven by Wild was struck by another vehicle that ran a stop sign. Wild explained to the treating physician at the hospital that he had a license to possess medical marijuana, and the physician stated it was clear Wild was not under the influence and did not require a blood test. Defendant David Feeney, however, stated Wild would need a test to return to work.

Several days later, Feeney told Wild that corporate was unable to handle his marijuana use and was terminating his employment because drugs were found in his system. Feeney also stated he had called defendant Ginny Sanzo to explain that Wild had been terminated due to drugs.

In a June 3, 2016, letter, however, corporate told Wild that he had not been terminated because of drug use, but because he failed to disclose his use of medication that could negatively impact his ability to perform his responsibilities at work.

A couple of months after Wild’s termination, his mother received a telephone call from someone who worked for another funeral home, stating she had heard Wild was fired because he was a drug addict and that rumor had made the rounds at the Bergen County Funeral Directors’ Association meeting.

As a result, Wild claimed Carriage could not lawfully terminate his employment without violating NJLAD. The trial court initially granted the defendants’ motion to dismiss after determining that The Compassionate Use of Medical Marijuana Act doesn’t contain employment-related protections for licensed medical marijuana users.

The Compassionate Use of Medical Marijuana Act decriminalized the use of medical marijuana for “any qualifying patient, primary caregiver, alternative treatment center, physician, or any other person acting in accordance with” its terms, according to the New Jersey Supreme Court opinion. The New Jersey Legislature passed the act on January 11, 2010, and it was signed by then-Governor Jon Corzine on January 18, 2010.

On July 2, 2019, current New Jersey Governor Phil Murphy signed into law the Jake Honig Compassionate Use Medical Cannabis Act, which makes several changes to New Jersey’s medical marijuana program. These include providing job protections to medical marijuana users and creating new drug testing procedures.

The Appellate Division reversed the dismissal of Wild’s NJLAD claims, citing Wild’s assertions that a disability qualified him to use medical marijuana, that he only sought to use it off-site and outside of working hours, and that the NJLAD makes it unlawful for an employer to discriminate against an individual with a disability unless it reasonably impedes job performance.

The appellate court did reject Wild’s claim that the Compassionate Use Act conflicts with the NJLAD, asserting that the Compassionate Use Act was intended to cause no impact on existing employment rights. It cited the act’s provision stating that “nothing in this act shall be construed to require…an employer to accommodate the medical use of marijuana in any workplace.”

The New Jersey Supreme Court affirmed the judgment of the Appellate Division, agreeing that Wild’s claim under NJLAD should not be dismissed. 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. The court instead sided with Wild’s claims at oral argument that if the New Jersey Legislature had not enacted the Compassionate Use Act, he would have no NJLAD claim for disability discrimination or failure to accommodate following the termination of his employment.

The court stated that in cases like this, where a plaintiff alleges the Compassionate Use Act authorized use of medical marijuana outside of work, the act’s provisions are consistent with the law governing NJLAD disability discrimination claims.

That said, the court added that two provisions of the act could affect a NJLAD discrimination or failure to accommodate claim in certain settings. One is that an employer is not required to accommodate the medical use of marijuana in the workplace, and the second is that a person is not permitted to operate, navigate or be in physical control of a vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of marijuana.

In this particular case, however, the New Jersey Supreme Court agreed with the Appellate Division that Wild properly stated a claim under the NJLAD.

The case is Justin Wild v. Carriage Funeral Holdings, Inc. d/b/a Feeney Funeral Home, LLC; David B. Feeney, and Ginny Sanzo.

Topics New Jersey Cannabis