Legal Updates for New Jersey Public Entity & Civil Rights
Legal Updates for NJ Public Entity & Civil Rights - November 2018
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.
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