The Compassionate Use Medical Marijuana Act (CUMMA) was passed by the New Jersey legislature on Jan. 11, 2010, and was signed into law by Governor Corzine on Jan. 18, 2010. N.J.S.A. 24:61-1 et seq. Under CUMMA, qualified patients can possess up to two ounces of medical marijuana within a 30-day period. CUMMA expressly states that it does not require employers “to accommodate the use of medical marijuana in any workplace.” However, any underlying condition for which medical marijuana would be prescribed would likely qualify as disability under both the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (NJLAD), both of which require employers to offer reasonable accommodations to allow disabled employees to perform their jobs. It is not yet clear whether permitting the use of medicinal marijuana outside of work would be deemed a reasonable accommodation of the underlying disability. However, an opinion just issued by a federal court in New Jersey held that CUMMA’s decriminalization of medical marijuana does not require employers to waive drug testing requirements for medical marijuana users as an accommodation under the ADA or the NJLAD. Cotto v. Ardagh Glass Packing, No. 1:18-cv-1037 (D.N.J. (RBK) (AMD)) (Fed. R. Civ. P. 12(b)(6) motion decided Aug. 10, 2018).
That case was brought by Daniel Cotto Jr. Cotto hit his head at work while operating a forklift, and was asked to take a drug test as a condition of continued employment. Cotto had a pre-existing back injury, of which the company was aware, for which he was prescribed narcotics and, unknown to the company, medical marijuana. In advance of taking the test, he disclosed that he used prescribed marijuana for his back pain, and was suspended indefinitely until he could test negative for marijuana. Cotto sued his employer under NJLAD, arguing that the company discriminated against him based on his disability (his back condition), and failed to reasonably accommodate his disability by waiving the requirement that he pass a drug test for marijuana.
The court dismissed the lawsuit for failure to state a claim, finding that neither CUMMA nor the NJLAD require an employer to waive a drug test as a condition of employment for a federally-prohibited substance.