Employment Discrimination against Medical Marijuana User?

As the NJ
legislature continues to debate the legalization of adult use marijuana, the NJ
Appellate Division has issued an important decision addressing a controversial
topic – the right of employers to discipline employees who use marijuana
outside of work.

In this case,
Wild vs. Carriage Funeral Holdings, a cancer patient, who had been prescribed
medical marijuana and who used the marijuana only after work hours and at home,
was terminated after his employer learned of his medical marijuana use and
inability, therefore, to pass an employer required drug test.  The
employee then sued alleging violations of, among other things, the NJ law
against discrimination.

The NJ medical
marijuana law states that nothing in it requires an employer to accommodate an
employee’s medical use of marijuana in the workplace.  Based on that
statutory language, the employer argued that a discrimination claim could not
proceed.  The Appellate Court rejected that argument and held that nothing
in the medical marijuana act “immunized employers from obligations already
imposed elsewhere”, including under the law against discrimination.  The
Court explained that nothing in the act “created new employment rights nor destroyed
existing employment rights.”

Because the
case was only at the initial pleading stage, the court noted that the employer
may ultimately succeed by showing that the termination was because the employee
was unable to perform the tasks required for his job or because his inability
to pass a drug test would jeopardize its licensing.

The decision does not resolve all of the issues relating to employment and medical marijuana but it does make clear that, under the right circumstances, an employer can be liable for discrimination against a medical marijuana patient.

Pashman Stein Walder Hayden is carefully monitoring developments in New Jersey and federally with respect to marijuana legislation and will be available to help its clients navigate the sure-to-be complex regulatory framework of this potential business frontier.

Please contact Sean Mack at smack@pashmanstein.com or 201.270.4919 for further information.