While the sale and possession of marijuana are flatly illegal under federal law, and the illegal status of recreational marijuana under New Jersey law has not changed yet, the medical use of marijuana is legal under New Jersey’s Compassionate Use Act for ALS, anxiety, certain chronic pain conditions, migraine headaches, MS, opioid addiction, terminal cancer, muscular dystrophy, inflammatory bowel disease, Crohn’s disease, terminal illness with less than twelve months of life expectancy, and Tourette’s Syndrome. It may also be used to treat HIV, acquired immune deficiency syndrome and cancer if severe or chronic pain, severe nausea or vomiting, cachexia or wasting syndrome result from treatment. Additionally, seizure disorder, epilepsy, Intractable skeletal muscular spasticity, glaucoma and PTSD qualify for medical marijuana treatment if the patient is intolerant of or resistant to conventional therapy.
The Interplay of Medical Marijuana and Disability Protections under New Jersey Employment Law
The Compassionate Use Act contains the language that “Nothing in this act shall be construed to require… an employer to accommodate the medical use of marijuana in any workplace.” On the other hand, New Jersey’s Law Against Discrimination does require employers to make reasonable accommodation for an employee’s disability if the accomodation would allow her to work without causing undue hardship for the employer. The conditions which allow for the use of medical marijuana under the Compassionate Use Act would in all likelihood constitute “disabilities” under the Law Against Discrimination. These two laws, both of which laudably aim to protect vulnerable people, thus appear to be in conflict.
The Appellate Division of New Jersey’s Superior Court recently issued a published opinion in the case of Justin Wild vs. Carriage Funeral Homes, Inc., addressing precisely this conflict.
The Wild Case
Justin Wild began working as a funeral director for Carriage in 2013. In 2015 he was diagnosed with cancer. His doctor prescribed medical marijuana as part of his treatment. In May 2016 while driving a vehicle in a funeral (part of his job), he was struck by a vehicle which ran a stop sign. He was taken to the hospital. He told the emergency room doctor about his prescription since marijuana stays in the bloodstream for up to 45 days. The doctor found him to be clearly not under the influence and therefore did not give him a blood test. He was given pain medication and released.
Wild’s father took his prescriptions for the pain medications and medical marijuana to his employer. The employer told his father that he would have to take a blood test before he could come back to work even though the hospital determined Wild was not under the influence. He went to a medical facility, which would not give him a blood test because it would be “llegal, and he warned that the results would be positive due to the marijuana and the prescription pain killers taken after the accident.” The doctor instead had Wild take a urine and breathalyzer test. Wilde never received the results of those tests.
While Wild told his supervisor that he only used the medical marijuana at home, and the supervisor told Wild it would be no problem, he was thereafter told that “corporate” had directed that Wild be fired because of his marijuana use and the “drugs in your system.” Later the reason was changed to failing to promptly advise his employer of his medication which might affect his ability to perform his job, although other employees reported that his employer was saying he was terminated because he was a “drug addict.”
Wild sued Carriage for disability discrimination by failing to reasonably accommodate his cancer treatment by refusing to allow him to use medical marijuana when he was not at work.
The employer’s attorneys argued that the Law Against Discrimination’s requirement for reasonable accommodations for disabilities did not apply because it was preempted by the language in the Compassionate Use Act that “Nothing in this act shall be construed to require… an employer to accommodate the medical use of marijuana in any workplace.” Thus, employers were not required to allow medical marijuana as an accommodation. The trial judge in the Superior Court agreed and dismissed Wild’s case.
Wild appealed to the Appellate Division, which reversed the trial judge and reinstated the case. The Appellate Division found no conflict between the Law Against Discrimination and the Compassionate Use Act. The court explained that although the Compassionate Use Act did not require an employer to allow the use of medical marijuana “in any workplace” as a reasonable accommodation for a covered disability, that did not preclude the obligation to allow medical marijuana use outside the workplace if required by other laws. Since the Law Against Discrimination already required employers to give reasonable accommodations for employees with disabilities, and medical marijuana was a legal prescription for covered disabilities, including Wild’s cancer, the accommodation was required by the Law Against Discrimination.
Moreover, the Appellate Division noted that the Compassionate Use Act’s language against employer’s being required to “accommodate the medical use of marijuana in any workplace” did not apply in this case anyway because there was no allegation that Wild used medical marijuana in the workplace; he apparently only used it at home. The case might therefore have turned out differently had Wild used marijuana at work, or come to work under the influence
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