Tag Archives: disability discrimination

Supreme Court of NJ Affirms Employee May State A Claim for Reasonable Accommodation for Medical Cannabis Use

medical marijuana

You may recall, in 2019, this blog post reported New Jersey’s Appellate Division joined courts that found an employee may be able to state a disability discrimination claim against an employer who takes an adverse employment action due to the employee’s use of medical cannabis.  That case, Wild v. Carriage Funeral Holdings, Inc., was one in a spate of recent decisions as courts in New Jersey and other states that allow medical use of cannabis have grappled with reconciling laws protecting employees from disability discrimination, employers’ rights to maintain workplaces free of drug use, and federal statutes outlawing cannabis use for any reason. Early decisions in these cases came down in favor of employers, permitting employers to discipline, terminate, or refuse to hire employees who use medical cannabis, even without evidence of use or impairment in the workplace.

New Jersey’s Appellate Division’s Wild ruling changed course when it held an employee may state a disability discrimination claim for failure to accommodate against an employer who takes an adverse employment action due to the employee’s use of medical cannabis.  Now, on March 10, 2020, the Supreme Court of New Jersey affirmed the decision, ruling an employer can potentially be liable under New Jersey’s Law Against Discrimination (“LAD”) for failing to accommodate an employee’s use of medical cannabis outside of the workplace.

What Happened?  In 2015, the employee, a funeral director, was prescribed and used medical cannabis as authorized by New Jersey’s Compassionate Use Act. In 2016, the employee was in an auto accident while working. The employee advised hospital staff he was authorized to use medical cannabis. The treating doctor responded that “it was clear [the employee] was not under the influence of cannabis [and, thus, his cannabis use was not a cause of the accident], and therefore no blood tests were required.”

While the employee recuperated, the employer advised that a blood test was required before the employee could return to work. The employee went to a facility to take a urine and breathalyzer test; however, the results were not provided to the employer and were not part of the case record.

The employee eventually returned to work, but, his supervisor advised him that his employment was “being terminated because they found drugs in your system”, though no test results had been provided to the employer. In a subsequent letter, the company told the employee it had terminated him not because of his drug use, but because he failed to disclose his use of medication contrary to company policy. The employee brought an action alleging he had been a victim of disability discrimination.

What did the Courts decide?  The trial court dismissed the employee’s claims, finding that New Jersey’s Compassionate Use Act “does not contain employment-related protections for licensed users of medical cannabis.” The employee appealed.

On appeal, a three-judge panel of New Jersey’s Appellate Division reversed the dismissal. The Appellate Division cannabis found that the LAD might require such an accommodation. Although the Compassionate Use Act does not make illegal an employer’s adverse action against an employee for medical cannabis use, by the same token, the Appellate Division stated it does not immunize an employer’s conduct that might otherwise have been a violation of the LAD.  In affirming the decision, the Supreme Court held an employee may state a failure to accommodate claim under the LAD against an employer who takes an adverse action against the employee for use of cannabis outside of work when that use is otherwise compliant with the Compassionate Use Act.

What do employers need to know?  It is important to understand neither the Appellate Division nor the Supreme Court ruled this employee was a victim of disability discrimination. In fact, the Appellate Division expressly recognized that the case was at the earliest stages, and the employer had pled potentially valid defenses.  The Court ruled only that the case could not be dismissed on its face.

New Jersey employers need to be mindful that they no longer have a free pass to take adverse employment actions against employees and candidates solely because they use medical cannabis outside of the workplace.  It is important to note, the courts in New Jersey have not suggested an employer must accommodate impairment due to medical cannabis use, so employers should remain vigilant about addressing employee impairment issues.  The law as to when an accommodation is reasonable is still developing.  For instance, a requested accommodation that may make an employer ineligible to bid on certain projects or that conflicts with established safety laws and regulations will be subject to greater scrutiny than a requested accommodation that does not impose added burdens on the employer.

In other words, stay tuned, because we have certainly not heard the last word on this topic.

Questions? Let me know.

 

Mass. Court Turns Over A New Leaf: Rules Employer May Be Liable for Failing to Accommodate Employee’s Medical Marijuana Use

Even though 29 states now allow medical marijuana, employee use of medical marijuana is unprotected in many workplaces because marijuana use of any kind remains illegal under federal law.   Favoring employee’s right to be free from discrimination for using medical treatments that are legal under state law over the federal ban, a recent decision from Massachusetts’s highest court means employers may need to reevaluate and revise their policies to keep up with this rapidly evolving area of employment law.

On July 17, 2017, the Massachusetts Supreme Judicial Court ruled a trial court erred when it dismissed an employee’s claim that she was subjected to disability discrimination when her employer terminated after she tested positive for marijuana in pre-hire drug screening.  The case, Barbuto v. Advantage Sales and Marketing LLC, is noteworthy because, in many states, employers have been able to terminate workers for failing drug tests due to medical marijuana use.

Where are we?

By way of background, employers have broad discretion to terminate employees for medical marijuana use in many states on the basis that use of marijuana, even if lawful under state law, remains a federal crime.  This is well illustrated by the case of Coats v. Dish Networks, LLC, decided by the Colorado Supreme Court in 2015.  In that case, an employee was terminated for testing positive for marijuana.  It was undisputed that the employee had a valid prescription to use medical marijuana, which was legal in Colorado, and that he did not use marijuana at work or in a way that impaired his work performance.  When he tested positive for marijuana, he was terminated and brought an action against his former employer for violation of Colorado’s Lawful Off-Duty Activities statute, which generally prohibits employers from discharging an employee based on his/her engagement in “lawful activities” off the premises of the employer during nonworking hours. The Colorado Supreme Court upheld the dismissal of the employee’s claims and found the employer had a right to terminate him for off-duty activities that violated federal law, even if they were lawful under Colorado law.  Similarly, the NFL prohibits players from using medical marijuana even in states where it is legal under state law.

Closer to home, under New Jersey law currently, employers have no strict obligation to accommodate medical marijuana users and employers may terminate an employee who fails a drug test, even if the employee can lawfully use medical marijuana under state law and was not impaired at work.  Pennsylvania’s recently adopted medical marijuana law broadly prohibits discrimination against an employee or job candidate because he or she has a medical marijuana prescription (i.e., is a cardholder), but it is silent on whether an employer can rely upon a positive drug test as a reason for an adverse employment action in itself.  Both Pennsylvania and New Jersey permit an employer to terminate an employee who is impaired in the workplace.

What Happened in Massachusetts?

That brings us back to Barbuto.  In Barbuto, before she was hired, the employee disclosed that she used medical marijuana to treat an underlying condition, but did not use it during working hours.  When the results of her drug screening were positive for marijuana, she was terminated after completing her first day.  Barbuto alleged the termination was discriminatory and the employer violated her rights by failing to make a reasonable accommodation.  In many states, Barbuto’s claim would have been dismissed, but in Massachusetts the Court took a novel approach.  The Court found the employer had a duty to make a reasonable accommodation for medical marijuana usage outside of working hours, despite the employer’s drug policy, explaining, “the fact that the employee’s possession of medical marijuana is in violation of federal law does not make it per se unreasonable as an accommodation.”  This outcome is surprising because it limits an employer’s discretion to discipline employees who use medical marijuana, in violation of federal law, by relying on the state’s anti-discrimination laws.  Most states have similar anti-discrimination protections.

Where we are going?

Although the Barbuto decision only applies in one of the 29 states where medical marijuana is currently legal, it is worth noting because of the potential for its reasoning to be applied in other states where medical marijuana is lawful.  If it is followed in other states, it creates a new risk when an employer has a zero-tolerance drug testing policy that leads to discipline for employees who lawfully use medical marijuana and are not impaired at the workplace.  In states where this issue has not been resolved, employers should expect to face claims similar to those raised in Barbuto.  For example, in Barrett v. Robert Half Corporation, a New Jersey employee tried to make a similar argument, but his case was dismissed on the basis that he never requested an accommodation, meaning the court never reached the issue of whether allowing off-duty use of medical marijuana is a reasonable accommodation.

Even if state courts do not follow Barbuto, legislatures are also revisiting the issue.  For instance, in New Jersey two bills offering express workplace protections for medical marijuana users are working their way through the legislature.

What should employers do?

In light of this ever-changing landscape, employers should carefully evaluate whether they need to screen for marijuana when conducting tests that are not related to suspicion of drug use in the workplace.  Today, in states where there is no clear precedent, disciplining an employee for a positive test when the employee has disclosed a need for medical marijuana usage and there is no evidence of workplace use is an increasingly risky decision and may soon give rise to a legislatively-sanctioned claim.  Of course, employers need not tolerate employees who are impaired in the workplace.  Additionally, some employers, especially those with safety-related positions and certain government contractors, may be required to screen for any marijuana use and enforce a zero-tolerance policy.  For everyone else, it is a good idea to think carefully before imposing discipline for medical marijuana use outside of the workplace.

Questions? Let me know.

%d bloggers like this: