Executive Summary: On March 10, 2020, the New Jersey Supreme Court affirmed the reinstatement of a disability discrimination lawsuit filed by a medical cannabis cardholder against his former employer, after he was fired for failing a post-accident drug test. The holding confirms medical cannabis users in New Jersey have two potential avenues to bring discrimination lawsuits against employers: the New Jersey Law Against Discrimination (“LAD”), and the recently amended Jake Honig Compassionate Use Medical Cannabis Act (“CUMCA”).
Wild v. Carriage Funeral Holdings, Inc.
Last March, New Jersey’s Appellate Division found that plaintiff Justin Wild (“Wild”) had adequately pled a cause of action against his former employer for violation of the LAD. Wild, a cancer patient and medical cannabis cardholder under New Jersey’s Compassionate Use of Medical Marijuana Act (“CUMMA”), had tested positive for cannabis after being involved in a car accident while at work. Although an emergency room doctor had examined Wild just after the accident and concluded that he was not impaired, the company terminated Wild’s employment based upon its policy against drugs in the workplace. Wild sued, claiming disability discrimination under the LAD.
The employer filed a motion to dismiss Wild’s claim, arguing CUMMA specifically stated it did not require “an employer to accommodate the medical use of marijuana in any workplace.” The Appellate Division disagreed that this language precluded plaintiff’s LAD claim, noting although CUMMA did not create a right to accommodation “in any workplace,” Wild’s complaint alleged he only sought an accommodation to allow his cannabis use “off-site” or during “off-work hours.” While not specifically authorized by CUMMA, such an accommodation might be available under the LAD.
The Supreme Court affirmed the Appellate Division’s holding without adding much additional guidance. The Court did, however, highlight two potential defenses for employers in future LAD cases centered on medical cannabis use. The Court noted a plaintiff’s LAD claim might be “impacted” if the employer could show the accommodation requested involved use “in the workplace,” or if the employee’s job involved operation of a “vehicle, aircraft, railroad train, stationary heavy equipment or vessel” and there was evidence the employee did so “while under the influence of marijuana.”
Employers’ Bottom Line: The Court’s holding in Wild will likely mean future lawsuits by medical cannabis users against their employers will regularly contain an alleged violation of the LAD. Last summer, CUMCA replaced CUMMA, and added specific employment protections for medical cannabis cardholders. The LAD, however, remains a highly attractive option for plaintiffs, given the expanded damages and attorney fee-shifting remedies available under the statute. While the LAD and CUMCA now both provide protection against discrimination for medical cannabis cardholders, employers may have different defenses available to them under each.
If you have any questions regarding the case or other issues impacting New Jersey employers, please contact the authors of this Alert, Keya Denner, kdenner@fordharrison.com, and Mark Saloman, msaloman@fordharrison.com, partners in our Berkeley Heights office, or the FordHarrison attorney with whom you usually work.