NJCUMMA provides protection from arrest, prosecution, property forfeiture, criminal and other penalties by the State of New Jersey for those patients who use medicinal marijuana to alleviate suffering from certain medical conditions, as well as their physicians, primary caregivers, and those who are authorized to produce, process and dispense marijuana for medicinal purpose. However, despite the protections found in NJCUMMA, the law lacks a provision requiring employers to accommodate the use of medical marijuana, stating that “[n]othing in [the CUMMA] shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace.” As a result, the following cases ensued.
In August 2018, New Jersey U.S. District Court Judge Robert Kugler held, in Cotto v. Ardagh Glass Packaging, 2018 WL 3814278 (D.N.J. Aug. 10, 2018), that an employer’s refusal to waive its drug test requirement for a forklift driver using medical marijuana was not discriminatory. Since the case concerned conduct resulting from the treatment, not the disability itself, Judge Kugler held that passing the drug test was an essential function of the job. Therefore, the disability discrimination case against Ardagh Glass Packaging was dismissed.
In February 2019, for the first time in New Jersey, in the case of Wild v. Carriage Services, 2018 WL 6704731 (N.J. Law Div. March 27, 2019), the Superior Court addressed the employment issues involving medical marijuana. The plaintiff, Jason Wild, a licensed funeral director, was diagnosed with cancer. To help alleviate the effects of the cancer, Wild’s doctors prescribed medical marijuana. Wild worked during the day at the funeral home and smoked medical marijuana at night to help ease his pain. In 2016, he was involved in a car accident, which occurred during the course of his employment, allegedly through no fault of his own or because of his use of marijuana.
Wild’s employer, Carriage Funeral Holdings, learned about his medical marijuana use when either he or his father disclosed it following the accident. Carriage demanded a drug test, which came back positive. Carriage terminated Wild based on the positive result and his violation of its drug and alcohol policy, which requires employees to “advise their supervisor if they are taking any medication that may adversely affect their ability to perform assigned duties safely.”