The New Jersey Supreme Court ruled March 10 that employers must accommodate workers’ off-duty medical cannabis use in a decision that marks a shift...

The New Jersey Supreme Court ruled March 10 that employers must accommodate workers’ off-duty medical cannabis use in a decision that marks a shift in the courts’ view of medical cannabis in the state, according to Pashman Stein Associate Dillon McGuire.

Justin Wild, a former funeral director for Feeney Funeral Home, had been treating his cancer with medical cannabis for a year without receiving any negative performance evaluations from his employer. When Wild had a minor car accident while on duty, Feeney Funeral Home tested him for drugs and alcohol as part of their company policy.

“At that time, he said, ‘Look, I have this medical marijuana card. I guarantee my test will be positive for marijuana, but it’s prescribed. I’m using it at home, after work hours,’” McGuire, whose firm was an amicus on the case, representing the ACLU and arguing on behalf of the plaintiff, told Cannabis Business Times.

When Wild failed the drug test, Feeney Funeral Home terminated him, prompting him to file a claim under New Jersey’s law against discrimination, alleging that his employer discriminated against him based on his medical condition and his need to use cannabis to treat it.

A trial court then ruled that there was a provision under an earlier version of New Jersey’s Compassionate Use Act, which has since been amended, that said employers were not required to accommodate the use of medical cannabis in the workplace.

“What the trial court held is that means that they don’t have to accommodate medical marijuana use at all, ever,” McGuire said.

Wild appealed the ruling, and the appellate court had a different interpretation of the law.

“[The appellate court said] employers are not required to allow their employees to consume medical marijuana at work, during work hours, but that doesn’t mean they don’t have to accommodate their use of medical marijuana at home, after work hours,” McGuire said. “The appellate division upheld that the plaintiff can go forward with the discrimination case based on his disability and his use of medical marijuana.”

This was the ruling that was upheld by the New Jersey Supreme Court.

“The Supreme Court agreed and said … employers may have to accommodate their use of medical marijuana at home, as long as they can still perform their job responsibilities,” McGuire said.

Prior to the rulings handed down by the appellate court and Supreme Court in the Wild case, New Jersey’s trial courts were routinely dismissing cases under the state’s law against discrimination when medical cannabis was involved, McGuire said.

“The view of the trial courts in New Jersey for a long time had been if it’s a medical marijuana issue, employers don’t have to accommodate it,” he said. “So, this was really a monumental decision.”

For Wild, the ruling means he can move forward with his case. It will presumably be taken back to the trial courts, where it would be treated as a new case.

The decision will also have an impact on the broader cannabis industry, McGuire added. While Wild’s case was pending, the New Jersey Legislature amended the state’s medical cannabis law to include employment protections in the statute, but those terminated for using medical cannabis prior to the change in the law can now seek reparations.

“From December 2019 forward, there is this new framework of very, very stringent drug testing requirements on employers,” he said. “This case is really limited to those who were terminated prior to December 2019. There’s a class of I’d say potentially thousands of plaintiffs who may now pursue discrimination action against their employers if they were terminated for using medical marijuana. It is a big decision, [but] it’s somewhat limited by the amendment of the statute.”

The ruling could also impact other states, however, as courts in Pennsylvania, New York, Connecticut and Delaware often look to the New Jersey Supreme Court for guidance, McGuire said.

“This decision, of course, would not be binding on the other states, but it could be persuasive authority, where now other states are going to start interpreting their statutes the way that our Supreme Court did,” he said.

The court’s decision also represents a “new wave of thinking” regarding medical cannabis, McGuire added.

“Patients using medical marijuana have been marginalized and largely ignored, treated like they’re delinquents of some sort,” he said. “There’s been this stigma around people using marijuana for so long and finally, that’s starting to change here. Our legislators are finally getting the idea and getting their head wrapped around the fact that not only is medical marijuana OK, but we’re likely going to have recreational marijuana here soon, too. So, it’s just the turning of the tides, I’d say.”

Of course, this does not make employers’ concerns regarding medical cannabis any less legitimate, McGuire added.

“You don’t want people coming into work under the influence of anything, so I think that’s a line that’s a reasonable one to draw,” he said. “If patients go home and use medical marijuana before bed to treat their anxiety or insomnia or pain or whatever it is they’re using the medical marijuana to treat, that’s really none of the employer’s business if they’re able to show up the next day and do their job. That’s really where the employer’s input should begin and end—is the employee able to do their job with or without reasonable accommodations?”

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