Thursday, September 6, 2018
Employers in the Garden State are not required to waive drug tests for employees who use medical marijuana under a state-legal system. In a recent case, Cotto v. Ardagh Glass Packing, Inc. (D.N.J. Aug. 10, 2018), the plaintiff was a forklift operator who was injured on the job and was prescribed marijuana and other painkillers. The employer required him to pass a drug test before returning to work.
The employee sued, arguing that he could not pass a drug test with medical marijuana in his system, and argued that the employer was required to accommodate his disability under the state's Compassional Use Medical Marijuana Act.
The federal district court refused to do so. Attorney Mark Saloman of NYC's FordHarrison LLP offers a nice and succinct rundown of the case:
Disability vs. Treatment: The court accepted Cotto's argument he was qualified to perform his work as a forklift operator and that he suffered from a known disability (i.e., neck/back pain). The key distinction here is that Cotto did not claim Ardagh discriminated against him based on his disability; rather, he claimed to be the victim of discrimination because Ardagh refused to accommodate his use of medical marijuana by waiving a drug test.
This required analysis of whether "treatment" of the disability can be distinguished from the "disability" itself. The court gave the cogent example that discrimination against wheelchair use (i.e., the treatment) is inseparable from discrimination against the disability. That was absent here because Ardagh had no objection to Cotto's disability but only "with a consequence of his treatment." This follows the LAD, which prevents discrimination premised upon the disability, not upon conduct resulting from the disability. Because the dispute was based upon conduct resulting from treatment (passing a drug screen), Cotto's disability itself was not an issue. Cotto's possession of a medical marijuana card and a note from his doctor stating that he could operate machinery while taking prescription drugs were equally unpersuasive.
What about CUMMA? The court held nothing within CUMMA supports or invalidates Cotto's claims or requires an employer to permit the use of medical marijuana in the workplace. Likewise, CUMMA does not waive an employer's obligations under the LAD. Citing precedent from jurisdictions where recreational marijuana already is legal, the court confirmed decriminalization of marijuana does not shield employees from adverse employment actions.
Besides dismissing the discrimination claim, the court also rejected Cotto's failure to accommodate claim under the LAD because neither CUMMA nor the LAD require Ardagh to waive its drug test as a condition for continued employment. Likewise, his retaliation claim failed because refusing to take a drug test is not a protected activity under New Jersey law.
Bottom Line: The federal court predicts the state judiciary will reach the "similarly obvious conclusion" that the LAD does not require accommodation of an employee's use of medical marijuana with a drug test waiver. This follows New Jersey courts' general acceptance of drug testing in private employment. It would not, however, be surprising if the competing bills pending in our legislature to legalize adult-use recreational marijuana carve out further protections for New Jersey employees.