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Employer not required by New Jersey medical marijuana law to waive drug test

By Kathleen Kapusta, J.D.

While no court has addressed the effect of the New Jersey Compassionate Use Medical Marijuana Act (CUMMA) on the New Jersey Law Against Discrimination (NJLAD), neither requires an employer to waive a drug test for federally prohibited substances as a condition of employment, a federal court in New Jersey held. Accordingly, the court, in an unpublished opinion, granted an employer’s motion to dismiss the state-law disability discrimination claim of an employee who, because of his use of medical marijuana, could not pass his employer’s drug test and who argued that CUMMA’s decriminalization of marijuana together with the NJLAD compelled his employer to accommodate him by waiving its requirement he pass a drug test after he was injured in a workplace accident (Cotto v. Ardagh Glass Packing, Inc., August 10, 2018, Kugler, R., unpublished).

Corporate wants you fired. At the time he was hired as a forklift operator, the employee purportedly informed the company that due to a prior neck and back injury he was prescribed Percocet, Gabapentin, and marijuana for pain management. He claimed he presented medical documentation showing it was safe for him to take these medications. When he was injured in a workplace accident five years later, he was told he had to pass a breathalyzer and urine test in order to return to work. Although he explained he could not pass a drug test because of the prescription medications, he was informed he could no longer work there because he could not operate machinery while on narcotics. When he stated that he could wean off the Percocet, he was allegedly told the problem was the medical marijuana and “corporate wants you fired.”

Claiming he was placed on indefinite suspension, which amounted to disability discrimination, the employee argued that he was capable of performing all the essential functions of his job despite his disability. Suing under state law, he contended that the decriminalization of medical marijuana under CUMMA, together with the NJLAD, required his employer to provide an accommodation for him, which the court inferred meant a request that his employer waive the requirement that he pass its drug test. Moving to dismiss, the company argued that CUMMA does not mandate employer acceptance—or, more particularly, to waive a drug test—of an employee’s use of a substance that is illegal under federal law.

Disabled. The court first found the employee’s back and neck pain, as alleged, satisfied the NJLAD’s standard for physical disability. Further, he appeared to be qualified to work as a forklift operator as he had done so for five years, apparently without issue until the events giving rise to this litigation. Observing that the employee pleaded that the company was aware of his disability for years and never discriminated against him until he was asked to take a drug test, the court noted that nothing in the complaint indicated an issue with his disability as such, only with a consequence of his treatment. In other words, said the court, the company had a condition of employment that the employee was unable or unwilling to meet: He had to test negative for illegal narcotics or else remain on indefinite suspension.

Federal prohibition. Addressing the question of whether the company could condition his employment on his passing a drug test, or in other words whether this was an essential function of his employment, the court explained that its “departure point is the current federal prohibition of marijuana.” The Controlled Substances Act, explained the court, classifies marijuana as a Schedule I substance that has no accepted medical use while Percocet, a tradename for the combination of oxycodone/paracetamol, which the employee also took, is a Schedule II substance that can be used with a prescription.

CUMMA. Although New Jersey, through CUMMA, has decriminalized the use of medical marijuana and removes the threat of civil sanctions from qualifying users, prescribers, or purveyors of medical marijuana, it does not require an employer permit the use of medical marijuana in the workplace. Rather, it specifically excludes employers from its scope, said the court, observing that “just as nothing within CUMMA invalidates Plaintiff’s claims, so too does nothing within the Act breathe life into them.”

The employee could not aver that CUMMA has no significance to his claims and at the same time aver that its decriminalization of medical marijuana mandates his employer waive drug testing for him, the court reasoned. “Nothing in the cited language supports a finding that CUMMA, working alongside NJLAD, somehow leads to an emergent, penumbral law. The statutes enact only what they expressly enact or what the New Jersey judiciary has held them to enact. And so far, the courts of New Jersey, or federal courts interpreting the law of New Jersey, have not yet addressed this question.”

Too obvious. Nonetheless, said the court, unless expressly provided for by statute, most courts have concluded that the decriminalization of medical marijuana does not shield employees from adverse employment actions. And while the employee relied on a dissent in Ross v. Ragingwire Telecomm., Inc., a 2008 California Supreme Court decision, in which the dissenting judge observed that “California’s voters . . . when they enacted [California’s] Compassionate Use Act, surely never intended that persons who availed themselves of its provisions would thereby disqualify themselves from employment . . . .,” the court here found more persuasive the majority’s conclusion that “FEHA does not require employers to accommodate the use of illegal drugs” and its observation that the dearth of case law was because “the point is perhaps too obvious to have generated appellate litigation.”

New Jersey judiciary. Predicting that the New Jersey judiciary would reach a similarly obvious conclusion—the NJLAD does not require an employer to accommodate an employee’s use of medical marijuana with a drug test waiver—the court noted that New Jersey courts have generally found employment drug testing to be unobjectionable in the context of private employment. Emphasizing that its decision was narrow as the employee’s claim turned entirely on the question of whether he could compel his employer to waive its requirement that he pass a drug test, the court found it plain CUMMA does not require the company to do so. Thus it found the employee failed to show he could perform the essential functions of his job and his employer was within its rights to refuse to waive a drug test for federally prohibited narcotics.