New Jersey workers can’t be fired if they flunk a drug test because they are medical marijuana patients, a state appeals court has ruled.
The case is likely to reverberate in workplaces for years to come because a state appeals court says medical marijuana patients — as long as they are not under the influence at work — are protected by the state Law Against Discrimination.
There are about 45,000 registered patients in the program with about 2,000 joining every month, according to the state Department of Health.
“The sweeping effect is you can no longer say, ‘You (tested) positive — you are outta here,’ ” said Maxine “Mickey” Neuhauser, an employment expert with the Newark office of the Epstein Becker and Green national law firm.
“There had been a general belief that since marijuana is illegal under federal law, employers would not have to accommodate its use by employees, even if they had a prescription for it and using it legally under state law,” Neuhauser said. “This appellate case very strongly came down in the opposite direction following the lead of other states confronted with the same issue.”
The March 27 state Appellate decision is based on a discrimination lawsuit filed by Justin Wild, 41, a man diagnosed with cancer who was fired from his director’s job at the Feeney Funeral Home in Ridgewood in 2016.
Wild did not tell his employer he was enrolled in the medicinal marijuana program until after he was injured in a car accident and was taken to a hospital, according to the court decision.
The accident was not deemed to be Wild’s fault and he claimed he was not high at the time. Because Wild acknowledged he was a registered patient, the emergency room physician did not administer a drug test because “of course it will be in his system,” according to a summary of the case in the court decision.
Wild’s boss insisted he get a drug test before returning to work. And when he tested positive for marijuana, he was fired, the opinion said.
Wild sued for discrimination, but he lost at the state Superior Court level. The trial judge said the New Jersey Compassionate Use Medical Marijuana Act, the 2010 state law creating the program, does not require employers to make accommodations on the job.
But the state Law Against Discrimination does require employers to accommodate people with disabilities like Wild, whose doctor approved his use of medical cannabis, Appellate Court Judge Clarkson Fisher Jr. wrote.
“It would be ironic indeed if the Compassionate Use Act limited the Law Against Discrimination to permit an employer’s termination of a cancer patient’s employment by discriminating without compassion,” Fisher wrote.
“The plaintiff did not allege he sought an accommodation for his use of medical marijuana ‘in [the] workplace,’ he alleged only that he sought an accommodation that would allow his continued use of medical marijuana ‘offsite’ or during ‘off-work hours,' ” the decision said.
Wild’s attorney, Jamison Mark, did not return calls and emails seeking comment for this report. The decision allows Wild to continue his lawsuit.
The attorneys for Feeney Funeral Home and the parent company, Carriage Funeral Services, filed for an appeal April 15, petitioning the state Supreme Court to take the case, Judiciary spokeswoman MaryAnn Spoto confirmed. The funeral home’s attorneys did not return calls and emails seeking comment.
If the court declines to review the decision, or accepts it and upholds the appellate ruling, the Wild case adds some clarity to an otherwise murky area of employment law involving the legal use of cannabis. With a small number or exemptions, medical marijuana patients enjoy few workplace protections. Complicating this is the fact that even with 33 states and Washington D.C. enacting medical cannabis laws, possessing the drug is still a federal crime.
The Wild case is not the first to recognize the disability rights of medicinal marijuana patients. Last fall, a U.S. District judge in Connecticut ruled in favor of a woman who sued a nursing home operator which rescinded a job offer because she was a registered medical marijuana patient and flunked the drug test.
Neuhauser, the attorney who coauthored an analysis of the decision, advises employers “not to get hung up on that this is cannabis. Think about it as you would for a prescription for Vicodin or Xanax or Ambien."
"You might need to go through the reasonable accommodation analysis for those individuals if you became aware of their use,” she said. That analysis includes whether the person can do the job safely if they are under the influence, or will the person medicate off-hours. “You have to focus on the employee’s conduct,” she said.
“I always emphasize when it comes to issues of disability, you must act on a case by case basis, and this case highlights the need to do that,” Neuhauser said.
This is not the first time judges in New Jersey have recognized the rights of medicinal marijuana patients. Several workers’ compensation cases have ordered employers to pay for tab for employees hurt on the job and rely on medical cannabis for pain relief. Insurance companies do not cover medical cannabis.
There is pending state legislation (S10) expanding the medicinal marijuana law that would protect workers from getting fired simply because they are registered patients or flunk a drug test.
Susan K. Livio may be reached at slivio@njadvancemedia.com. Follow her on Twitter @SusanKLivio. Find NJ.com Politics on Facebook.
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