NJ Court Says No to a Reasonable Accommodation for Medical Marijuana

NJ Court Says No to a Reasonable Accommodation for Medical Marijuana

In conjunction with the rise of legalizing/decriminalizing medical, and even recreational marijuana use nationwide, employers increasingly face challenges in regards to substance use and their employees. Along with the conflict between state and federal laws, state laws differ as to who is covered by the law, the quantity of marijuana that is permitted, who may access it, and how it may be obtained. In New Jersey, medical marijuana has been authorized and recreational use may follow soon. As a result, employers must determine whether modifying their policies concerning substance abuse and drug testing is necessary.

The New Jersey Compassionate Use Medical Marijuana Act (CUMMA) was passed on January 11, 2010, by the legislature and soon after signed into law. The CUMMA allows patients to possess up to two ounces of medical marijuana in a thirty-day period under a physician’s supervision and with a prescription. The CUMMA, however, specifically states the law does not require employers “to accommodate the use of medical marijuana in any workplace”. Based on that language and the fact that marijuana is still a Schedule 1 Controlled Substance under federal law, we have advised our employers there is no need to accommodate or tolerate any marijuana use by employees.

Recently, the federal District Court of New Jersey, agreed.  In Cotto v. Ardagh Glass Packing, CV-18-1037 (D.N.J. August 10, 2018), the plaintiff, Daniel Cotto Jr., was employed as a forklift operator. Cotto hit his head on the roof of the forklift, injuring himself on the job. As a result, Cotto was required to take and pass a post-accident drug test. Before the test, Cotto informed his employer he would not pass the test because he takes several medically-prescribed drugs, including medical marijuana, to manage pain from a previous injury. The employer suspended him indefinitely until he could take a drug test that would show no marijuana in his system. Cotto sued arguing disability discrimination and that his employer was obligated to accommodate his disability by waiving the clean drug test requirement.

The federal court, however rejected that contention.  The Court noted prior decisions which have held that the obligation to accommodate disabilities does not require an employer to tolerate criminal conduct.  Although CUMMA decriminalized medical marijuana under New Jersey law, it remains illegal under federal law.  Further CUMMA specifically disclaimed placing any burden on employers to accommodate medical marijuana use and the Law Against Discrimination does not address it at all.  Accordingly, the Court decided the employer had no obligation to accommodate the use of medical marijuana by waiving a drug test requirement.

The use of medical and recreational marijuana is a constantly changing area of the law and employers need to be aware of their rights and responsibilities.  Although this federal court case provides support for an employer to not accommodate a medical marijuana user, any such situations should be addressed with care and on a case by case basis.  If you have any questions about employees’ use of marijuana, disability accommodations, or any other employment matter please do not hesitate to contact one of our Employment and Labor Law attorneys: Thomas Ryan, Esq. (tryan@lcrlaw.com), Ursula Leo, Esq. (uleo@lcrlaw.com), or Jessica Jansyn, Esq. (jjansyn@lcrlaw.com).  Our attorneys can also be reached by phone at (973) 729-1880.