New Jersey’s Supreme Court just allowed an employee who was fired for using medical marijuana to sue his company for discrimination. The ruling is an early battle in what will be a longer process of reconciling recent cannabis legislation with state employment law, and it highlights the ambiguities around workplace cannabis policy. “The question is,” said Elizabeth Zuckerman from the National Employment Lawyers Association of New Jersey, “can a cancer patient or anyone else who’s lawfully prescribed marijuana, proceed on a disability discrimination case where he has been terminated for using a legally prescribed medicine?” She was presenting an amicus brief during oral arguments in February, in support of Justin Wild, a funeral home director with a medical marijuana prescription who was fired in 2016 for failing a drug test. “We handle a lot of disability discrimination cases,” Zuckerman told the court. “That’s what this case is.”  The lawsuit was brought by funeral home director Justin Wild against his former employer, Carriage Funeral Holdings, inc., after Wild was fired for failing a drug test. The company demanded the drug test after Wild was involved in a car accident at work, but Wild alleges that he was discriminated against because he was undergoing legal medical cannabis treatment at the time. He was using cannabis to relieve pain from cancer, a disability which he argues the funeral home had an obligation to accommodate. 

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The lawsuit was dismissed in court at first

Wild’s lawsuit was initially dismissed in trial court, when the court ruled that New Jersey’s Compassionate Use Medical Marijuana Act “does not contain employment-related protections for licensed users of medical marijuana.” The dismissal was overturned by an appellate court last March. Wild’s attorney, Jamison Mark, told the court during oral arguments that “the [medical] card by itself would imply that the employee has a debilitating medical condition, i.e. a disability.” He argued that even though New Jersey’s Compassionate Use of Medical Marijuana Act did not at the time require employers “to accommodate the medical use of marijuana in any workplace,” it does not prevent patients from suing under the state’s existing Law Against Discrimination, which he said “is really more relevant as to the workplace accommodation.” The Supreme Court ultimately agreed with Mark, and upheld the appellate court’s decision to allow the case to move forward. In an opinion joined by all seven justices, the Supreme Court found that, although some provisions in the state’s medical marijuana law could moot the discrimination suit, “at this early stage of this case, in which the facts have yet to be developed and plaintiff’s allegations are entitled to every reasonable inference of fact, those provisions do not bar his cause of action.”   Mayur Saxena, Chief of Affirmative Civil Rights and Labor Enforcement at the New Jersey Attorney General's Office, also briefed the court in favor of Wild. “We believe the appellate division essentially got it correct,” he said. “This is fundamentally an LAD case. It was a LAD case then, and it would be a LAD case today.” 

The jury will decide if it's discrimination

Once the case proceeds to trial, a jury will decide whether firing Wild was discrimination or not. This will likely mean some debate about when an employer has to accommodate marijuana use, and what obligation the employee has to report their own use. In front of the supreme court, Wild’s attorney maintained that the bottom line was Wild’s right to be able to use medical marijuana as recommended outside of work, “so that he could work pain free, or with less pain.”  Another question which came up in the court’s oral arguments, and which is likely to resurface at trial, is how cannabis might impair the job performance and safety of employees. Wild’s attorney maintained that Wild was not impaired at work, or during the car accident which triggered his drug test. “We do know on the scene, the police officer, based upon the facts that we have, said he’s not under the influence, we’re not going to test him here on the scene,” said Mark. “They took him to the hospital by ambulance, and in the ambulance and at the hospital there was no indication whatsoever that he was impaired.” Justice Barry T. Albin narrowed in on this aspect of the case, observing that Wild “was terminated for violating the policy, which is, quote, ‘employees must advise their immediate supervisor if they were taking any medication that may adversely affect their ability to perform assigned duties safely.” The judge went on to ask if Wild’s belief that he was not impaired would be tested by a jury.  “That’s clearly a factual issue,” said Mark. “It’s whether the employer believed it or whether the employee believed it, and who is right.” He went on to ask, hypothetically, “Can he work, if he takes it the night before, and then comes in the next day? That’s a great question,” Mark said, “and it’s a question that we need to bring in an expert to say.”  Zuckerman, from the National Employment Lawyers Association, also returned to this point. “The whole drug test is a bit of a red herring too, because we don’t have a drug test for determining impairment for marijuana,” she said. “Before we had breathalyzers we used the walk-the-straight-line test, and until we have a test that determines whether you are impaired in your blood or urine, you look at a person and you make a determination, are you impaired? And there is no allegation in this case that Justin Wild was impaired on the job.” Mark also told the court that proof of his client’s ability to perform his job was in the pudding. “Not only can he, but he did,” he said. “In other words, for the year before he was terminated, he had the card, he was using the medical marijuana as a patient, and he was performing his job stellarly. And in fact, even after the auto accident, he continued to do his job with minor accommodation because of the auto accident and the pain.” 

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New Jersey protects medical marijuana patients

New Jersey passed a new medical marijuana law in July, the Jake Honig Compassionate Use Medical Cannabis Act, which adds substantial workplace protections for marijuana patients. It includes a provision that makes it “unlawful to take any adverse employment action” against an employee just because they are a registered cannabis patient. However, Justin Wild was fired in 2016, before the new bill was passed, and the funeral home is arguing that they were in line with the law at the time.  In fact, when Justice Anne Patterson asked the funeral home’s attorney, Stephen J. Luckner, if he would be using the same defense under the new law, Luckner replied “Absolutely not. It’s an entirely different statute, and I think the legislature did the right thing, but that’s not what the law said at the time this happened.”  Mark’s final word on behalf of his client was to read from the appellate court’s decision. “It would be ironic indeed,” that court wrote, “if the Compassionate Use Act limited the Law Against Discrimination to permit an employer's termination of a cancer patient's employment by discriminating without compassion.”