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New Jersey Appellate Court Reinstates Lawsuit Claiming Disability Discrimination Based on Medical Marijuana Use

New Jersey is among the more than half of all U.S. states that allows the possession and use of small amounts of marijuana for medical purposes, under the supervision of a physician. Recreational use is still prohibited by state law, and federal law still prohibits possession and use for any purpose. Conflicts among various laws have led to much confusion. The New Jersey Superior Court, Appellate Division recently ruled on how this state’s marijuana laws affect employment discrimination laws. The court reversed the dismissal of a lawsuit brought by an individual whose cancer treatment plan included a medical marijuana prescription. The plaintiff alleged that his former employer fired him in violation of state laws prohibiting disability discrimination. Published Decision (the “Decision”).

The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination on the basis of factors like race, religion, sex, and disability. N.J. Rev. Stat. § 10:5-12(a). It defines the term “disability” to include “physical disability [or] infirmity…which is caused by…illness.” Id. at § 10:5-5(q). This includes many the physical and other symptoms caused by many forms of cancer.

A plaintiff alleging disability discrimination under the NJLAD must prove four elements:
1. The employee had a disability, or the employer perceived the employee as having a disability;
2. The employee was still qualified to perform, and was still performing, “the essential functions of the job”;
3. The employee suffered “an adverse employment action” because of the actual or perceived disability; and
4. The employer “sought a similarly qualified individual” to replace the employee.

In 2009, the Legislature enacted the New Jersey Compassionate Use Medical Marijuana Act (NJCUMMA). The statute allows the production, distribution, sale, and use of small amounts of marijuana with a doctor’s prescription. The issue in the Decision was a provision stating that the law should not “be construed to require…an employer to accommodate the medical use of marijuana in any workplace.” N.J. Rev. Stat. § 24:6I-14.

According to his complaint, the plaintiff in the Decision began working for the defendant as a funeral director in 2013. In 2015, he was diagnosed with cancer. His doctor wrote a prescription for medical marijuana, as allowed by the NJCUMMA. The defendant learned about the plaintiff’s marijuana use the following year. The plaintiff asserted that he only used marijuana outside of work hours for pain management purposes. The defendant terminated the plaintiff several days later.

The trial court dismissed the plaintiff’s lawsuit on the ground that § 24:6I-14 meant that an employer could not be required to accommodate medical marijuana use. The Appellate Division disagreed, holding that this provision does not “immunize[] employers from obligations already imposed elsewhere,” such as the NJLAD’s provisions on disability discrimination and accommodation. Decision, slip op. at 3. The court noted that the plaintiff did not seek an accommodation for use of marijuana in the workplace. He only asked the defendant to “allow his continued use of medical marijuana ‘off-site’ or during ‘off-work hours.’” Id. at 22.

The knowledgeable and experienced employment lawyers at the Resnick Law Group advocate for the rights of workers in New Jersey and New York, helping them assert claims in state and federal court. Please contact us at 973-781-1204, at 646-867-7997, or online today to schedule a confidential consultation with a member of our team.

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