Advertising Disclosure Email Disclosure

Legal Updates for NJ Public Entity & Civil Rights

November 7, 2018
Presented by the Public Entity and Civil Rights Litigation Practice Group

Medical Marijuana and Disability Law 

By Matthew J. Behr, Esquire

In August, 2018, the District Court of New Jersey addressed for the very first time whether being prescribed medical marijuana is protected pursuant to the New Jersey Law Against Discrimination (NJLAD) and whether an accommodation should be made for the prescription and use of same. The court held as a matter of law that a person is not protected and an employer can still enforce its drug testing policy. 

In Cotto v. Ardagh Glass Packing, Inc., 2018 U.S. Dist. LEXIS 135194 (D.N.J. August 10, 2018), the plaintiff was injured while working and upon returning to work after his injury he was mandated as a condition of his employment to take a drug test. The plaintiff informed his employer that he was prescribed and taking medical marijuana–yet his employer would not let him return to work since he could not pass the drug test because of his use of medical marijuana. The plaintiff alleged that this amounted to disability discrimination and sought an accommodation which was inferred by the court to mean a waiver of the requirement to pass a drug test.

The defendant employer filed a motion to dismiss prior to any discovery being taken. The court analyzed the NJLAD to whether the employer was discriminating against the plaintiff based on his disability. The court first looked to federal law which prohibits the use of medical marijuana and then it analyzed the 2010 New Jersey Compassionate Use of Medical Marijuana Act which decriminalized the use of medical marijuana. Importantly, the Act states that nothing shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace. 

Next, the court looked to other states in interpreting this issue. Almost unanimously, both state and federal courts around the country have held that the use of medical marijuana does not require an employer to accommodate that use.

Based on all of the above, the District Court of New Jersey, for the first time under state or federal cases in New Jersey, held the NJLAD does not require an employer to accommodate an employer’s use of medical marijuana with a drug test waiver. The bigger issue to come is: if the state of New Jersey decriminalizes the use of recreational marijuana, can employers still drug test for marijuana although it would be legal? That question is for another day.   


The material in this law alert has been prepared for our readers by Marshall Dennehey Warner Coleman & Goggin. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects.  ATTORNEY ADVERTISING pursuant to New York RPC 7.1.  © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved.

Affiliated Attorney

Joseph J. Santarone Jr.
Chair, Public Entity & Civil Rights Practice Group
(215) 575-2626
Matthew J. Behr
(856) 414-6048

Practice Areas

Before you send this email please note:

You are attempting to send email, through a link on our website, to an attorney of Marshall Dennehey Warner Coleman & Goggin or an employee in our firm. Please note that your email may not be treated as confidential and does not create an attorney-client relationship. You should not rely upon the transmission of an email through this website if you are seeking to enter into such a relationship. Until such time as we have agreed to represent you, no information in your email will be treated as confidential. Please contact us directly by telephone at 1.800.220.3308 if it is your intent to seek legal counsel with our firm or convey confidential information.

If it is still your intent to send this email, knowing that it may not be treated as confidential, you may accept our terms of agreement by pressing "OK". If you choose not to accept these terms of agreement you may navigate away from this page by pressing "Cancel."