by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)
In New Jersey, cannabis is a hot topic. The laws regulating its use for medicinal purposes are evolving, and the legislature may soon legalize it for recreational use. Cannabis issues also continue to percolate through New Jersey courts. On Wednesday, the Appellate Division issued its opinion in Wild v. Carriage Funeral Holdings, Inc., an important decision on whether employers must accommodate medical marijuana use by their employees. When this case was decided by the trial court, most employers interpreted it as not requiring them to do so. This may not be the case after the Appellate Division’s decision. The Appellate Division reversed the trial court but stopped short of declaring that employers must always accommodate their employees use of medical marijuana.
In Wild, plaintiff worked as a funeral director at a funeral home owned by one of the defendants. Two years after he started working at the funeral home, he was diagnosed with cancer. As part of his treatment, plaintiff was prescribed medical marijuana as permitted by New Jersey’s Compassionate Use Act, which allows individuals who are suffering from “debilitating medical conditions” to use marijuana for medicinal purposes. The act also protects those individuals, along with their doctors, from criminal prosecution for marijuana possession and from other civil and administrative penalties. But the Act does not “require . . . an employer to accommodate the medical use of marijuana in any workplace.” This provision was at the heart of the dispute in Wild.
In 2016, plaintiff was driving a hearse for a funeral when another driver ran a stop sign and collided with the hearse. Plaintiff was injured and was taken to the emergency room. Plaintiff advised the treating physician that he had a license to possess marijuana. The physician stated that it was “clear plaintiff was not under the influence of marijuana, [ ] therefore no blood tests were required.” After being examined, plaintiff was given pain medication and sent home. When he went home, plaintiff took the pain medication and used his medical marijuana.
This is where the story takes a bit of an odd turn in my opinion. For some reason, while plaintiff slept, his father took plaintiff’s “medical prescription and licenses” to the funeral home and told plaintiff’s boss that “the emergency room doctor had refused to perform a blood test on plaintiff because [the doctor] ‘would not be liable for forcing a blood test,’ and knowing that plaintiff had a legal prescription and was permitted to use marijuana, ‘of course it will be in his system.'” Nonetheless, plaintiff’s father explained that the doctor did not believe plaintiff was under the influence of any drugs or alcohol when he was brought to the hospital. (Again, the opinion does not explain why plaintiff’s father did all of this while his son was home resting.)
Later that day, plaintiff’s boss called plaintiff’s father and told him that plaintiff would need to take a blood test before plaintiff could return to work. Plaintiff’s father objected, noting that “marijuana stays in one’s system for 45 days.” Plaintiff’s boss indicated that plaintiff would still have to go for the test.
That same night, plaintiff went to a walk-in medical facility to take a blood test. “There, the physician opined that ‘testing plaintiff was illegal and he warned that the results would be positive due to the marijuana and the prescription pain killers taken after the accident.'” Instead of a blood test, the doctor administered urine and breathalyzer tests, the results of which were never given to plaintiff or included in the record.
Some time later, after returning to work at the funeral home, plaintiff’s boss advised him that “corporate” was “unable to ‘handle’ his marijuana use and that his employment was ‘being terminated because they found drugs in [his] system.'” “Corporate” then sent plaintiff a letter advising him that he had been terminated, not because of his drug use, but because he “failed to disclose his use of medication, which might adversely affect his ability to perform his job duties.”
Plaintiff sued, claiming that the funeral home violated New Jersey’s Law Against Discrimination (“LAD”) by terminating him “because he had a disability (cancer) and was legally treating that disability, in accordance with his physician’s directions and in conformity with the Compassionate Use Act.” Defendants moved to dismiss, arguing that the Compassionate Use Act did not “require” employers to accommodate medical marijuana users. Stated differently, defendant argued that it did not need to alter its drug and alcohol policy to account for plaintiff’s use of medical marijuana, even if that use was permitted under the Compassionate Use Act. The trial court agreed with defendant and dismissed the complaint. Plaintiff appealed.
The Appellate Division reversed, holding:
[B]ecause the Compassionate Use Act declared it should not be construed to “require” an accommodation does not mean such a requirement might not be imposed by other legislation. In short, like the first law of thermodynamics, that provision – beyond its own limited criminal and regulatory context – neither creates nor destroys rights and obligations. So, we reject the essential holding that brings this matter here and conclude that the Compassionate Use Act’s refusal to require an employment accommodation for a user does not mean that the Compassionate Use Act has immunized employers from obligations already imposed elsewhere. 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.
In other words, the LAD might require employers to provide reasonable accommodations to individuals permitted to use medical marijuana, even if the Compassionate Use Act alone would not.
In Wild, plaintiff alleged that he was terminated because of his disability, cancer, which “qualified his use of medical marijuana.” The Appellate Division held that plaintiff had adequately stated a claim under the LAD. Whether he could eventually prove his claim was not the question before the Appellate Division, which repeatedly emphasized that it was “not at the stage where proofs alleged [were] to be weighed and analyzed.” Instead, to reverse the trial court, it only needed to “determine whether plaintiff pleaded the elements of a prima facie case” for discrimination. This is a low burden, and Plaintiff satisfied it.
So how, if at all, will the Appellate Division’s decision in Wild impact employers and employees in general? This is an interesting question (and not just because I asked it). Wild is a decision that requires more than one reading to extract any generally applicable principles. But it appears that the Appellate Division’s decision (1) makes it harder, if not impossible, for employers to quickly get out of lawsuits filed by employees who are permitted to use medical marijuana as a result of a disability, but (2) does not mean that employers can never properly terminate employees in that situation.
For example, in Wild, the Appellate Division noted that defendant could rebut plaintiff’s claims by arguing that plaintiff was terminated, not because of his disability, but “based on [his] inability to perform the tasks required or because his inability to pass a drug test [ ] jeopardize[d] licensing.” Either would allow defendant to avoid liability for terminating plaintiff, but both are fact-sensitive, so neither could be relied upon to have the case dismissed at the outset. Instead, defendant would have to proceed through discovery and, at best, prevail on summary judgment or trial. I don’t imagine employers will see this as good news. But it is at least a silver lining, and any snap judgment that Wild means that employers must accommodate all employees covered by the Compassionate Care Act would be an overstatement.
Finally, the Appellate Division emphasized, more than once, that plaintiff was not seeking an accommodation to use medical marijuana “in the workplace.” He only sought an accommodation that would allow his continued use of medical marijuana “off site” or during “off-work hours.” Accordingly, the Appellate Division concluded, “just because the Legislature declared that ‘nothing in the Compassionate Use Act shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace,’ [ ] does not mean that the LAD may not impose such an obligation, particularly when the declination of an accommodation to such a user relates only to use ‘in any workplace.'” This somewhat unique fact may further limit the applicability of Wild to other situations.