By: Catherine M Shiels, Esq. and Samantha E Hahn, Esq.
In a recent unpublished opinion, Cotto v. Ardagh Glass Packing, Inc., Civil No. 18-1037 (RBK/AMD), the New Jersey District Court held that employers are not required to accommodate medical marijuana usage in the work place. New Jersey courts have generally been permissible with regard to drug testing in private employment; however, this marks the first decision expressly addressing medical marijuana in the work place after the passage of the New Jersey Compassionate Use Medical Marijuana Act.
In 2007, Plaintiff, Daniel Cotto, sustained neck and back injuries. He was prescribed a number of pain medications including Percocet, Gabapentin, and marijuana. Around 2011, Petitioner became employed by the Defendant, Ardagh Glass, as a fork lift operator. He disclosed his disability and prescription medications at that time. In November 2016, Cotto sustained a work related injury. He was released to light duty; however, before his work restrictions would be accommodated, Ardagh required him to take a drug test. He was told that he would be unable to return to work until he tested negative for marijuana. Ardagh did not take issue with the prescribed Percocet. Cotto resultantly remained on an indefinite suspension.
Cotto filed a complaint in the Superior Court of New Jersey alleging disability discrimination. Cotto claimed that he was disabled under the New Jersey Law Against Discrimination (“LAD”), but was able to perform the essential functions of his fork lift operator position. He simply required a reasonable accommodation that his drug test be waived. He argued that the accommodation was reasonable because medicinal marijuana has been decriminalized under the New Jersey Compassionate Use Medical Marijuana Act (“CUMMA”). The case was removed to the United States District Court for the District of New Jersey, and Ardagh filed a motion to dismiss. Judge Robert B. Kugler granted Ardagh’s motion.
To succeed in a claim for disability discrimination under LAD, a plaintiff must prove four things: (1) that he is disabled; (2) that he is able to perform the essential aspects of his job; (3) that he was discharged; and, (4) that the employer sought someone else to perform his work after he left. Grande v. Saint Clare’s Health Sys., 230 N.J. 1, 18 (2017). Judge Kugler found that Cotto’s complaint did not allege that he was being discriminated against because he was disabled; instead, Cotto claimed he was being discriminated against because of his marijuana treatment. The issue before the Court was whether Cotto’s employment could be conditioned upon the passage of a drug test.
Under the Federal Controlled Substances Act, marijuana is classified as a “schedule one” substance. 21 U.S.C. §812(c). A schedule one substance is considered to have a high potential for abuse, no accepted medical use, and is unsafe for use even under medical supervision. 21 U.S.C. §812(b). The passage of CUMMA does not negate Federal law. Marijuana remains illegal. Instead, CUMMA provides its registered members protections against criminal prosecution, civil penalties, and negative actions from professional licensing boards in New Jersey. It does not regulate private conduct and specifically states that, “nothing in this act shall be construed as to require…any employer to accommodate the medical use of marijuana in any workplace. N.J.S.A. 24:61-14. Judge Kugler held that nothing in CUMMA or LAD explicitly requires an employer to accommodate the use of illegal drugs in the work place. Without an explicit protection, Cotto did not have a valid claim.
Many, but not all, states have taken a similar approach as New Jersey. Courts in California, Washington, Michigan, and New Mexico have all held that their respective medical marijuana laws do not regulate the conduct of private employers. As a result, employers are not required to accommodate medical marijuana in the workplace. Contrastingly, the medical marijuana statutes in Arizona, Pennsylvania, and Delaware all contain provisions protecting medical marijuana patients from work place discrimination. These statutes do not require employers to permit marijuana usage on the employer’s premises; however, employees like Cotto could not be terminated for failing a drug test. The extent to which, if at all, an employer must accommodate a medical marijuana user depends upon their state’s explicit statutory language.
New Jersey Employers and their Workers’ Compensation carriers are increasingly being ordered to cover the costs associated with the medical marijuana treatment. As the law currently stands, an employer is not required to accommodate or employ a registered medical marijuana user. This is good news for all employers that remain uncomfortable with running afoul of Federal law. Any change in the status quo will likely be dependent upon the passage of new legislation in Trenton.
Catherine M. Shiels, Esq. is a Shareholder in GRSLB&G’s Workers’ Compensation Department. She defends employers, insurers, and third party administrators against workers’ compensation claims in New Jersey and New York. Catherine can be reached at firstname.lastname@example.org.
Samantha E. Hahn, Esq. is an Associate in GRSLB&G’s Workers’ Compensation Department. She defends employers, insurers, and third party administrators against workers’ compensation claims in New Jersey and Pennsylvania. Sam can be reached at SHahn@grsl.com