Labor & Employment Law Daily Fired funeral director advances disability bias claims stemming from medical marijuana use
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Friday, March 13, 2020

Fired funeral director advances disability bias claims stemming from medical marijuana use

By Wayne D. Garris Jr., J.D.

The New Jersey Compassionate Use Act allows individuals to use medically prescribed marijuana but does not contain employment protections for licensed users of medical marijuana.

Affirming the appellate court’s denial of an employer’s motion to dismiss, the New Jersey Supreme Court held that a former funeral director sufficiently pled that his termination from his job at a funeral home because of his use of medically prescribed violated the New Jersey Law Against Discrimination (NJLAD). The court declined to adopt the appellate court’s holding that the Compassionate Use Act intended “to cause no impact on existing employment rights.” While the Act states that it does not create new employment rights, the court acknowledged that the employee’s NJLAD claim is derived from the right to use medical marijuana. In the instant case, the court noted, in which the employee alleged that the Act authorized his use of medical marijuana outside the workplace, that Act’s provisions may be harmonized with the law governing disability discrimination claims (Wild v. Carriage Funeral Holdings, Incv., March 10, 2020, per curiam).

The employee worked for the employer as a licensed funeral director. After he was diagnosed with cancer, his physician prescribed marijuana as permitted by the New Jersey Compassionate Use Act. While he was working a funeral, the employee was involved in an accident with a vehicle that ran a stop sign. At the hospital, the employee informed a physician that he had a license to possess medical marijuana. The physician responded that ‘it was clear [the employee] was not under the influence of marijuana, and therefore no blood tests were required.” However, the employer required the employee to take a drug test to return to work.

Termination. The employee worked a funeral the next week. Several days later, the employer terminated him because they found drugs in his system. In a June 3, 2016 letter, the employer stated that it terminated the employee “not because of his drug use, but because he failed to disclose his use of medication, which might adversely affect his ability to perform his job duties.” A few months later, the employee alleged that an employee of another funeral home told his mother that a rumor was going around that the employer terminated the employee because he was a ‘drug addict.’

Lawsuit. The employee field suit alleging that his termination violated the NJLAD. The trial court granted the employer’s motion to dismiss holding that New Jersey’s Compassionate Use Act did not contain employment protections for users of medical marijuana.

Appeal. On appeal, the appellate court reversed the trial court’s dismissal of the NJLAD claims. The appellate court agreed with the trial court that the Compassionate Use Act did not intend to impact existing employment rights and “neither created new employment rights nor destroyed existing employment rights”; however, it held that the employee articulated a claim upon which relief could be granted under the NJLAD. The appellate court noted that even though the Compassionate Use Act did not require the employer to accommodate the medical use of marijuana that did not mean that the NJLAD did not impose such an obligation, especially since the employee only sought an accommodation to use medical marijuana off-site or off-work hours.

Harmonizing statutes. The New Jersey Supreme Court agreed that the employee’s claim was sufficient to survive a motion to dismiss and that there was no conflict between the Compassionate Use Act and the NJLAD. The court declined to adopt the appellate court’s opinion that the Compassionate Use Act did not to impact existing employment rights. The employee’s NJLAD claim derived from his assertion that, outside the workplace, he lawfully used medical marijuana in accordance with the Compassionate Use Act. The court concluded that the employee would have had no NJLAD claim for disability discrimination had the legislature not enacted the Compassionate Use Act. The state high court stated that the employee’s claims were correctly identified as NJLAD claims and must be evaluated as such, but the Compassionate Use Act’s provisions will have be “harmonized” with the law governing NJLAD claims.

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