On March 10, 2020 the New Jersey Supreme Court ruled that under the New Jersey Law Against Discrimination (“LAD”), employees who legally use cannabis as permitted by the state’s Compassionate Use of Cannabis of Medical Marijuana Act[i] (“Compassionate Use Act”) may not be fired because they use medical cannabis and that such employees are entitled to reasonable accommodation. In a brief opinion, the Court substantially adopted the Appellate Division’s reasoning in Wild v. Carriage House Funeral Holdings, Inc., about which we previously wrote.
Wild was employed by Carriage House Funeral Home as a licensed funeral home director. While working a funeral, a vehicle he was driving was hit by a driver who allegedly ran a stop sign. Following the accident, Wild was taken to the hospital, but was not administered a drug test because he told the Emergency Room doctor about his license to possess medical marijuana and the physician told him that therefore no test was required because the results would be positive. Wild had not previously told his employer of his use of medical marijuana and after learning of it, Carriage House terminated his employment.
Wild, who suffers from cancer and who is a New Jersey registered user of medical cannabis pursuant to a prescription permitted under the state’s Compassionate Use Act, sued alleging disability discrimination and failure to accommodate under the LAD. Carriage House moved to dismiss the complaint because cannabis is an illegal drug under federal law. The Supreme Court’s decision was based solely on New Jersey state law. In its opinion, the Court stated that before enactment of the Compassionate Use Act, Wild would not have a claim for disability discrimination or reasonable accommodation under the LAD, but that the law opened the door to such claims.
Of interest in light of the facts giving rise to Wild’s complaint – i.e., his involvement in a car accident -- the Court expressly noted that the Compassionate Use Act states “that the Act ‘shall not be construed to permit a person to a. operate, navigate or be in actual physical control of any vehicle, aircraft, railroad train, stationary heavy machinery or vessel while under the influence of marijuana.’” The Court went on to state, [t]to the extent that the circumstances surrounding the LAD disability discrimination claim were to implicate one or both of those provisions of the Compassionate Use Act, the Act would have an impact on that claim.” The Court did not rule on the merits on Wild’s claim.
Amendments to the Compassionate Use Act about which we previously wrote, in addition to other changes, provides broad employment protections for registered medical cannabis users, including a procedure employers must follow if an employee or applicant for employment tests positive for cannabis. If an applicant or employee who tests positive for cannabis shows that the individual is a licensed New Jersey medical cannabis user, the Supreme Court’s decision establishes that employers must consider whether the employee’s cannabis use can be reasonably accommodated, as it would have to do for any employee’s prescription drug use that might impact the employee’s ability to perform essential job functions.
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[i] After the Wild case arose and was filed, the statute’s original name, “New Jersey Compassionate Use Medical Marijuana Act,” was changed to the “Jack Honig Compassionate Use Medical Cannabis Act.”
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