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New Jersey Lawsuits Allege Disability Discrimination Based on Drug Test Results

New Jersey employment laws bar discrimination based on disability. An employer cannot fire an employee or subject them to other adverse actions because of an injury, illness, or other condition that significantly affects their lives. State law uses a broad definition of “disability” that includes physical and mental conditions. Two lawsuits currently pending in New Jersey’s federal district court allege disability discrimination based on use of prescribed medication. One suit involves a plaintiff with a prescription for medical marijuana. The other involves an amphetamine-based medication used to treat attention deficit hyperactivity disorder (ADHD). The defendant in both cases is a major online retailer that operates multiple warehouses and distribution centers in New Jersey.

“Disability,” according to the New Jersey Law Against Discrimination (NJLAD), includes “any mental, psychological, or developmental disability…which prevents the typical exercise of any bodily or mental functions,” or which can be identified “by accepted clinical or laboratory diagnostic techniques.” N.J. Rev. Stat. § 10:5-12(q). The statute requires employers to make reasonable accommodations for employees’ disabilities. Failure to do so is an unlawful practice under the NJLAD.

New Jersey passed a law in 2009 authorizing the distribution and possession of small amounts of marijuana for medical purposes with a doctor’s prescription. As originally written, the law stated that it did not require employers “to accommodate the medical use of marijuana in any workplace.” It was not clear whether this meant the literal use of marijuana while at work, or if it allowed employers to enforce policies regarding marijuana use regardless of an employee’s medical needs. The New Jersey Supreme Court ruled in 2020 that a plaintiff could bring a disability discrimination claim under NJLAD based on lawful medical marijuana use. The New Jersey Legislature also amended the statute to remove the language about employers and accommodations.

Medication for ADHD is not specifically mentioned in the context of employment law. The most common ADHD medications are stimulants containing amphetamine or related substances. These are classified as Schedule II controlled substances under federal law, and Schedule III controlled substances under state law. 21 C.F.R. § 1308.12(d), N.J. Rev. Stat. § 24:21-7(c). They are lawful to possess and use with a doctor’s prescription.

The plaintiffs in the two lawsuits mentioned above both originally filed suit in Mercer County Superior Court. The defendant removed both cases to the U.S. District Court for the District of New Jersey. In both cases, the plaintiffs were required to submit to drug testing performed by a third-party contractor. One plaintiff tested positive for amphetamine, consistent with his treatment for ADHD. The other tested positive for marijuana, also consistent his medical treatment. They both eventually lost their jobs, but they allege that they were not given an opportunity to explain the positive test results.

The lawsuits assert causes of action for disability discrimination under the NJLAD. They argue that the defendant terminated their employment and took other adverse actions because of their lawful use of controlled substances to treat medical conditions, which did not diminish their job performance. The defendant’s alleged failure to accommodate their prescribed medication usage, the plaintiffs claim, constitutes discrimination on the basis of disability.

The skilled and knowledgeable employment attorneys at the Resnick Law Group represent workers who have experienced discrimination and other unlawful workplace practices in New Jersey and New York. Please contact us online, at 973-781-1204, or at 646-867-7997 today to schedule a confidential consultation to discuss your rights and options.

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