New Jersey’s Law Against Discrimination May Protect Marijuana Usage as a Reasonable Accomodation

New Jersey’s Law Against Discrimination (“LAD”) protects employees from adverse employment actions (being fired or demoted for instance) based on any protected characteristic such as disability, race, gender, age, etc.  For employees with disabilities, the LAD has been interpreted by the Courts  to require employers to provide reasonable accommodations to employees with disabilities.

 

In July of 2019, Governor Murphy signed the Jake Honig Compassionate Use of Medical Cannabis Act, amending New Jersey’s Compassionate Use of Medical Marijuana Act (“CUMMA”). This amendment  added several provisions, including that it is now unlawful to take adverse employment action against an employee who is registered as someone permitted to obtain and use medical marijuana. However, this does not protect an employee from being fired or otherwise subject to an adverse employment action for possession of marijuana at work or using during work hours or at the workplace location.

 

While this is a new law, the Courts have already been coming to much the same decisions.  Indeed, in the case of Wild v. Carriage Funeral Holdings, Inc., the court considered a case where an employee was fired in 2016 when the employers found out that he used medical marijuana (legally) as part of his cancer treatment/pain management.  Plaintiff sued the former employer for unlawful discrimination and failure to accommodate a disability.  The trial court dismissed the action based on the law’s language (which has since been removed as part of the amendment) that nothing in the act “shall be construed to require an employer to accommodate the medical use of marijuana in any workplace.”)

 

However, even with that language, the Appellate Division (and then the Supreme Court  affirming that decision) found that even if CUMMA did not require an accommodation, the LAD did. Basically, the LAD required a reasonable accommodation to a person with a disability.  Permitting a person to legally use marijuana under CUMMA was a reasonable accommodation.  The legislature then codified this finding in the 2019 amendment.

 

It is important to note that the employee was not using marijuana in the workplace and he was not under the influence while he was working.  A difference in these facts could result in a different finding by the Courts depending on the specific circumstances.  Indeed, use while at work or in the workplace could very well bring the accommodation out of the range of “reasonableness” which is required by the LAD and permit the employer to discipline the employee.

 

Also – although Defendants tried to have the case heard in federal court – it was remanded to state court. Marijuana use – whether it be for medical reasons or otherwise – is still illegal under federal laws. Therefore, while New Jersey’s law has certainly become somewhat stronger on its protections of medical marijuana users outside of the workplace it is still unclear how the federal courts might treat these situations in consideration of the federal position on marijuana.

 

McLaughlin & Nardi, LLC’s attorneys are experienced in representing both New Jersey employees and employers in all manner of employment claims, including, specifically discrimination claims under the LAD, and, indeed, all aspects of the employment relationship, from hiring to firing, litigation and arbitration. To learn more about what we can do to help, please visit our website or contact one of our lawyers at (973) 890-0004.