New Jersey: After Hours Medical Marijuana May Have to be Accommodated

A recent New Jersey Supreme Court case said that employers could face a disability discrimination claim if they fail to consider reasonable accommodations for medical marijuana use, even outside the workplace and after working hours.  Although the state’s Compassionate Use Medical Marijuana Act (CUMMA) does not require employers to accommodate marijuana use in the workplace, the court indicated that CUMMA does not protect an employer from actions that violate the New Jersey Law Against Discrimination (NJLAD) – such as discriminating against someone for using medical marijuana after hours.

This decisions arose from Wild v. Carriage Funeral Home, Inc., in which the plaintiff used medical marijuana as part of his cancer treatment.  When the employee was involved in a vehicle accident, he informed his doctor and the employer of his medical marijuana use outside of work, and the employer later required the employee to undergo drug testing before returning to work.  The plaintiff claimed that his employer informed him he would be terminated due to the positive drug test and for failing to disclose his marijuana use.  Although the plaintiff had not previously requested an accommodation, the court determined that the employer was made aware of the employee’s disabling condition and need for treatment.  Putting the employer on notice of lawful medical marijuana use may be sufficient to trigger the employer’s responsibility to begin the interactive process for reasonable accommodations, rather than taking immediate action based on the results of the drug test.

The court carved out an important caveat to the decision, indicating that while CUMMA and NJLAD are not generally in conflict to each other, CUMMA still does not permit any person under the influence of marijuana to operate, navigate, or be in control of any vehicle, aircraft, railroad train, stationary heavy equipment, or vessel.

Employers should be prepared to engage in the interactive process whenever they become aware of an employee’s use of medical marijuana, even if that usage only takes place outside of the workplace.  If the employee in question occupies a safety-sensitive position, the nature of their job should be assessed as part of the process.

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