Posted on Friday, March 29th, 2019.

On March 27, 2019, the Superior Court of New Jersey, Appellate Division, issued its decision in Wild v. Carriage Funeral Holdings, Inc., et al.   The appellate court reversed the dismissal of a complaint filed by a cancer patient who claimed that he had been terminated by his employer after the employer learned that the employee had been using marijuana for medical purposes.  The employee had raised a viable claim of disability discrimination that should have been allowed to proceed.

Wild involved a funeral director who had been diagnosed with cancer and prescribed marijuana under New Jersey’s Compassionate Use Medical Marijuana Act.  His employer allegedly learned of the employee’s use of medical marijuana after an off-duty automobile accident had injured the employee. (The employee alleged that marijuana played no role in the accident).  The employee was terminated shortly thereafter.  The employee claimed he was first told that his employer had been unable to “handle” his marijuana use and that his employment was being terminated “because they found drugs in [his] system.”  The employee alleged that no positive drug test result had ever been produced or reported to his employer.  The employee alleged that he was later told that he had been terminated allegedly because he failed to disclose his use of medication that might adversely affect his ability to perform his job duties.

The defendants moved to dismiss the case based on N.J.S.A. 24:6I-14, which states that nothing in the Compassionate Use Act would “require… an employer to accommodate the medical use of marijuana in any workplace.”  Although the trial court agreed with the defendants, the appellate court reversed.  The allegations of the employee’s complaint did not suggest that he had been using marijuana for medical purposes in the workplace.  The employee instead alleged that his marijuana use was entirely off duty.  The employee was therefore permitted to argue that his termination based on his alleged purely off duty use of marijuana constituted an act of disability discrimination.  And this was sufficient to allow the employee’s claim to proceed.  The court noted:

While defendants may argue [that] termination was based on plaintiff’s inability to perform the tasks required or because his inability to pass a drug test may jeopardize [the employer’s] licensing – all potential responses to a prima facie discrimination claim that would then be subject to allegations of pretextuality – we cannot ignore that this case is only at the pleading stage; our only role is to search with liberality the [complaint] for a fundament of a cause of action without searching the pleading for proof of allegations.

The holding in Wild does not mean that an employee who utilizes marijuana for medical purposes is immune from termination, or that this particular employee’s claim that his employer was required to accommodate his medical marijuana use will necessarily succeed.  The case stands for the proposition that an employee who is terminated solely because he uses medical marijuana off duty – in the absence of any evidence of on duty use or impairment – will not have his claim of disability discrimination barred at the initial pleading stage.  As the Wild Court suggested, the employer may be able to defeat the employee’s claim if the employer can demonstrate that even off-duty marijuana use renders the employee unable to perform his job duties, or that the employee’s inability to pass a drug test would jeopardize the employer’s legitimate business interests such as causing the employer to lose its license to operate.  Further, Wild did not address whether an employer is barred from terminating a medical marijuana user who tests positive for marijuana while on duty.

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