Medical marijuana laws have been enacted in many jurisdictions. A decision by the New Jersey Supreme Court allowed an employee to proceed with an employment-based discrimination claim following his termination for using medical marijuana. The decision illustrates the impact these new laws are having on employment relationships. ABA Section of Litigation leaders say employers and employees need to be aware of the changing landscape of medical marijuana laws and how they could affect the workplace.
In Wild v. Carriage Funeral Holdings, an employee alleged that his employer violated the New Jersey Law Against Discrimination (LAD) by terminating him for his medical marijuana usage. The employee claimed that as part of his cancer treatment, he used medical marijuana as permitted by the New Jersey Compassionate Use Medical Marijuana Act (CUA). The employer sought dismissal of the complaint based on a since-amended provision of CUA stating that nothing in the act required an employer to accommodate medical marijuana use in the workplace. The trial court agreed and dismissed the employee’s LAD claim.
On appeal, the trial court’s decision was reversed. The appellate court held that CUA did not immunize employers from complying with LAD obligations to employees who, because of their disabilities, need to use medical marijuana outside of work.
The employer petitioned for a review by the New Jersey Supreme Court, which was granted. In a per curiam opinion, New Jersey’s highest court affirmed, holding that the employee sufficiently pled a claim of disability discrimination to survive the motion to dismiss. The court agreed with the appeals court that CUA could be harmonized with LAD. But, unlike the lower court, the supreme court opined that certain provisions of CUA, including the one cited by the employer, could impact a plaintiff’s LAD claim.
In light of the Wild decision, “employers in New Jersey now have to look at medical marijuana just like they would look at other prescription drugs,” says John S. Austin, cochair of the Section of Litigation’s Trial Practice Committee. “An employee’s use of medical marijuana is protected under the law, just as if it was legally prescribed drugs,” explains Austin. However, “it remains an open question” whether an employee who needs to use marijuana to control a disability at work would be safe from termination if the employee could show that marijuana usage did not affect his or her ability to perform the required work, observes Loren Kieve, cochair of the Section’s Judicial Intern Opportunity Program.
“Marijuana’s impact on employment law is rapidly developing,” says Austin. “Thirty-three states now allow for the use of medical marijuana, and the remaining seventeen states allow the use of cannabidiol (CBD) products,” he states. These laws are constantly changing. As indicated by the New Jersey Supreme Court, the provision at issue in Wild no longer exists. After certiorari was granted in that case, the New Jersey legislature enacted the Jake Honig Compassionate Use Medical Cannabis Act in July 2019, which amended CUA and augmented workplace protections for medical marijuana users. New Jersey employers are now explicitly prohibited from taking an “adverse employment action” against employees or applicants solely because of their status as a registered marijuana user.
Additional safeguards were also included regarding workplace drug testing policies. In particular, employees or applicants who are registered qualifying patients must be allowed to explain positive test results, such as by providing medical marijuana cards. In effect, “the new legislation now takes the guesswork out of an employee’s rights, providing the employee with the ability to provide satisfactory and conclusive evidence that the employee was not violating an employer’s drug policy,” explains Austin.
Addressing the relationship between medical marijuana legislation and anti-discrimination laws, “courts are all over the place, with legislatures scrambling to come up with a solution,” says Kieve. In California, where medical marijuana has been legal since 1996, Kieve suspects that the legislature may take similar measures as have been taken in New Jersey. Particularly, a bill was recently introduced in February 2020 that “would make medical cannabis users a protected class in California,” Kieve notes.
However, Kieve adds that the medical marijuana user must satisfy several conditions and the employer can still take adverse actions in some situations, such as to comply with federal laws or if the employee uses marijuana at the workplace. “As a matter of legislative policy, the states appear to be saying, ‘look, medical marijuana has been proven to help patients, so employers need to recognize this and, consistent with the needs of the workplace, accommodate its use,’” observes Kieve.
Yet, not all states have been as welcoming. For example, in North Carolina, “there has been pending legislation to allow the medical use of marijuana, specifically THC, but those bills have yet to be passed by the legislature,” Austin says. He adds, “North Carolina does allow CBD oils and extracts, but they must have less than 0.3% THC.”
Given the divergence in state laws and their rapid changes, both employers and employees need to be apprised of applicable marijuana laws where they have businesses, Section leaders recommend.
