In a recent decision approved for publication on March 27, 2019, the New Jersey Appellate Division addressed an issue of first impression: whether an employee can state a claim for disability discrimination based on an employer's refusal to accommodate legal, off-duty use of medical marijuana, as permitted by the New Jersey Compassionate Use of Medical Marijuana Act (Compassionate Use Act).
In Wild v. Carriage Funeral Holdings, Inc., et al., A-3072-17T3 (N.J. Super. Ct. App. Div. Mar. 27, 2019), the plaintiff was a licensed funeral director for Carriage Funeral Holdings, Inc. (Carriage). His duties included, among other things, driving the funeral home's hearse and other vehicles. After working for Carriage for approximately three years, the plaintiff was involved in a car accident in the course of his employment. At the time of the accident, he was driving one of Carriage's vehicles during a funeral when another driver ran a stop sign and struck the vehicle driven by the plaintiff.
After the plaintiff arrived at the hospital for treatment of his injuries from the accident, he informed the emergency room physician that he had been prescribed medical marijuana the year prior as part of his cancer treatment plan. The treating physician felt it was clear that the plaintiff was not under the influence of marijuana, and thus, determined that a blood test was unnecessary. The physician prescribed the plaintiff pain medication for his injuries from the car accident, which the plaintiff took once he got home. He also used medical marijuana as prescribed.
After the accident, Carriage notified the plaintiff's father that his son would be required to submit to a blood test before returning to work. The father advised Carriage that the physician at the hospital determined that a blood test was unnecessary given the physician's observations of his son's condition. The plaintiff's father also informed Carriage that the physician was not going to force a blood test on a patient who showed no signs of being under the influence of drugs or alcohol, particularly since the test would yield a positive result in light of the plaintiff's legal prescription for medical marijuana. Nevertheless, Carriage insisted that the plaintiff submit to a blood test. That same evening, the plaintiff went to an urgent care facility and underwent both a urine test and breathalyzer test, in lieu of a blood test, since the physician at the facility indicated that "testing [the plaintiff] was illegal, and he warned that the results would be positive due to the marijuana and the prescription painkillers taken after the accident."
The plaintiff returned to work within a week of the automobile accident. Shortly thereafter, his manager told him that "corporate" was unable to "handle" his marijuana use and that his employment was "being terminated because they found drugs in [his] system." In written correspondence, Carriage informed the plaintiff that his employment was terminated because he violated company policy by failing to disclose his use of medication that might adversely affect his ability to perform his job duties.
The plaintiff then filed suit against Carriage and two individuals, asserting, among other claims, a claim of disability discrimination under the New Jersey Law Against Discrimination (LAD). He alleged that "Carriage could not lawfully terminate his employment without violating the LAD, despite the results of his drug test, because he had a disability (cancer) and was legally treating that disability, in accordance with his physician's directions and in conformity with the Compassionate Use Act." Because the Compassionate Use Act "does not contain employment-related protections for licensed users of medical marijuana," the trial court granted Carriage's motion to dismiss.
On appeal, the Appellate Division recognized that the Compassionate Use Act expressly provides that it does not "require... an employer to accommodate the medical use of marijuana in any workplace." N.J.S.A. 24:6I-14. However, the court noted that the plaintiff's pleading was not based on the denial of an accommodation for use of medical marijuana in the workplace. Instead, he alleged that Carriage failed to accommodate his off-duty use of medical marijuana. The Appellate Division reasoned that the Compassionate Use Act does not alter an employer's obligations under the LAD. The court rejected Carriage's argument that the Compassionate Use Act insulates an employer from liability for disability discrimination under the LAD. The court wrote: "It would be ironic indeed if the Compassionate Use Act limited the [LAD] to permit an employer's termination of a cancer patient's employment by discriminating without compassion."
Acknowledging that there may be a valid argument as to whether the use of medical marijuana precluded the plaintiff from performing the duties of his job, the court remarked that such proofs are not to be weighed and analyzed at the motion to dismiss stage of the case. Instead, the court focused on whether the pleading contained the elements of a prima facie disability discrimination claim. Applying the appropriate standard of review on a motion to dismiss, the Appellate Division viewed the pleading liberally to see if "a cause of action may be gleaned even from an obscure statement of claim." Reversing the trial court's ruling, the Appellate Division held that the plaintiff's pleading sufficiently set forth the elements of a disability or perceived disability discrimination claim. Thus, the Appellate Division remanded the case to the trial court for further proceedings.
What This Means for Employers
This case underscores the importance of analyzing the legal implications of taking adverse action against an employee with a disability. Employers should confer with their legal advisors when assessing accommodations like the accommodation alleged in Wild. This ruling serves as a reminder that employers should engage in the interactive process with employees who have disabilities to determine if a reasonable accommodation can be provided without imposing an undue hardship on the employer. Employers faced with the issue of evaluating whether to accommodate off-duty use of medical marijuana should also consider whether the employee could pose a direct threat to the health or safety of the employee or others, which cannot be eliminated or reduced by a reasonable accommodation.
Based on the Appellate Division's decision in Wild v. Carriage Funeral Holdings, Inc., employers can expect to see an increase in LAD claims by employees who are denied accommodations for off-duty use of medical marijuana. While such claims may survive motions to dismiss if premised on the requisite factual allegations, it remains to be seen whether these claims will be viable following motions for summary judgment.
This is the first reported decision regarding the employment implications of lawful, off-duty use of medical marijuana. We expect there will be more to come on this issue. Duane Morris will continue to monitor such developments as they unfold.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.