By Maggie Johnson
Recreational marijuana use is not yet legalized in New Jersey or New York despite recent attempts by each state’s legislators to do so. However, recreational marijuana use, if legalized, would not necessarily present a problem for employers. As a comparison, alcohol is legal, but employers have the right to prohibit its consumption during working hours and in the workplace. Surely, the same rule would apply to recreational marijuana. But what about medical marijuana?
The New Jersey Compassionate Use of Medical Marijuana Act (“CUMMA”) authorizes patients and their primary caregivers who register with the New Jersey Department of Health to possess medical marijuana that has been dispensed by a New Jersey Alternate Treatment Center. Thus, employers may be concerned about employees’ usage of marijuana, prescribed by a physician, for medical purposes. If an employee has a prescription for medical marijuana and tests positive on the Company’s random drug test, for example, is that test result excused because the employee has a legal prescription for the drug? Would an employer be expected to provide a “reasonable accommodation” for the use of medical marijuana for an employee with a disability? The first thing to remember is that CUMMA is a state law. Under federal law, marijuana is still illegal. So let’s turn to a case from August 2018 for some guidance.
In Cotto v Ardagh Glass Packing, Inc., et al, Mr. Cotto, an Ardagh Glass Packing employee was a forklift operator for the company. Mr. Cotto was injured on the job and took a medical leave of absence to recover. Mr. Cotto was prescribed and used medical marijuana for pain management for injuries he suffered several years ago (not associated with his on-the-job injury). When Mr. Cotto was ready to return to work after his medical leave of absence he was required to pass a drug test before he could recommence his job duties. Mr. Cotto could not pass that drug test because of his medical marijuana usage. Mr. Cotto produced his medical marijuana card and his prescription from his physician. Despite that Mr. Cotto used marijuana legally for his medical condition, his employer would not permit him to return to work until he could pass a drug screening test. Mr. Cotto sued his employer claiming that Ardagh Glass Packing had (1) discriminated against him by refusing to waive the drug test; (2) had failed to reasonably accommodate his disability; and (3) retaliated against him in violation of the New Jersey Law Against Discrimination (“NJLAD”).
Before I tell you how the case was decided, consider this: While it is understandable for an employer to prohibit an employee from driving a forklift or operating any type of heavy machinery with marijuana in his or her system, should the employer, in this case, have made an exception? Alternatively, should the employer have made an accommodation such as offering the employee another position that didn’t require operating a forklift? How would you have handled this situation at your company?
Here’s how Judge Robert Kugler of the United States District Court for the District of New Jersey decided:
Neither NJLAD nor CUMMA requires employers to waive taking and passing drug tests for employees who use prescribed medical marijuana. Although medical marijuana is legal in the state of New Jersey, as mentioned above, it is still illegal under federal law.
The Court held that passing a drug test was an essential function of Mr. Cotto’s job, therefore, the employer was within its rights to refuse to waive a drug test for federally-prohibited narcotics and, as such, the employee “failed to show that he could perform the essential functions of the job.” (Author’s note: It is the federal Americans with Disabilities Act that provides for employees to perform the essential functions of their jobs with or without a reasonable accommodation. Marijuana use for any reason is illegal under federal law.)
For the same reasons as given above, the Court also dismissed Mr. Cotto’s claims that his employer failed to accommodate his disability or retaliated against him.
It should be noted, however, that the above case was heard by a federal district court and is an unpublished, non-precedential decision. This may be a temporary victory for employers. So, do not rest on your laurels where medical marijuana is concerned. It’s likely that change is coming!