Reasonable Accommodation of Medical Cannabis Use: Let’s Talk About It   

In a decision issued in March, the New Jersey Supreme Court ruled that employers must reasonably accommodate individuals who are legal users of medical cannabis.

The case, Wild v. Carriage House Funeral Home, arose out of a car accident. Wild was employed by Carriage House as a licensed funeral home director. While working a funeral, a vehicle he was driving was hit by a driver who allegedly ran a stop sign. Following the accident, in the context of explaining that he would test positive if drug tested, Wild told his employer that he was a using medical marijuana to treat his cancer. Wild had not previously told his employer of his use of the drug and after learning of it, Carriage House terminated his employment.

Wild, a New Jersey registered user of medical cannabis under the state’s Compassionate Use of Medical Marijuana Act, sued alleging disability discrimination and failure to accommodate under the New Jersey Law Against Discrimination (“NJLAD”), which requires employers to reasonably accommodate employees’ disabilities.  Carriage House moved to dismiss the complaint arguing that because marijuana use is illegal under federal law, Carriage House had no obligation to accommodate Wild’s criminal conduct.

The Supreme Court – deciding the case based solely on New Jersey law alone – ruled that New Jersey employers may not fire employees, who are legal (under state law) users of medical cannabis based only on such use. Rather, the Court held, legal users of medical cannabis are entitled to reasonable accommodation of disability and protection against disability discrimination under the NJLAD. Of note, the Court did not decide whether Wild was, in fact, entitled to reasonable accommodation or that he was wrongfully fired. It simply permitted his case against Carriage House to continue under the state’s anti-discrimination law.

Under the NJLAD, like other disability anti-discrimination laws, an employer must provide reasonable accommodation to permit an employee who is disabled to perform the essential functions of his or her job. The law requires that each employee’s situation be considered on a case-by-case basis. This lack of established rules, often makes employers feel that determining what accommodations are reasonable, as opposed to what constitutes an undue hardship, amounts to little more than a guessing game. This feeling may be particularly acute in matters involving use of medical cannabis because the obligation to accommodate its use is new.

Nevertheless, there are some important guidelines employers can and should follow. First and foremost, employers must engage in an “interactive process” with the employee to identify potential accommodations the employer might be able to provide to enable the employee to fulfill job requirements.  This communication should be tied to the essential functions of the employee’s position, whether the employee’s use of medicinal marijuana impacts their ability to do the job, and if so, what accommodation might be provided to enable the employee to be successful without undue hardship on the employer (including on the employee’s co-workers).

Depending on the job, it may be that nothing needs to be done and no accommodation will be required because the employee’s use of medical marijuana will not impact their ability to do the job.  In other instances, the employer and employee may need to consider whether accommodations are necessary and if so, whether they can reasonably be made.

In the Wild decision, the Court noted, that New Jersey’s compassionate use law provides that nothing in the Act “shall not be construed to permit a person to: a. operate, navigate or be in actual physical control of any vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of marijuana.”

Thus, for example, if an employee’s job, like Wild’s, requires driving, the employer will be entitled to know whether there is the potential that the employee might be under the influence when required to drive. The employer can and should make that inquiry and may request a doctor’s note. If the cannabis use will impact the employee’s ability to drive, employers would need to consider, for example, whether the employee’s duties can or should be changed to eliminate driving requirements, whether to modify the employee’s hours, or to transfer the employee to another position.

As the Wild decision illustrates, flatly denying a request, without engaging in the interactive process, may alone subject an employer to a lawsuit. From a legal perspective, it forestalls the opportunity for the employer and the employee to consider whether there are other accommodations the employer might be able to provide, or whether there is information the employee can provide to put the employer at ease and establish nothing more is needed.

Keep in mind that an employer may not simply stop the process upon receipt of a doctor’s note that asks for an accommodation that would constitute a hardship – such as a request to excuse the employee from performing essential parts of the job or from meeting performance expectations. An unacceptable request for accommodation is best met with at least a discussion regarding why the accommodation would create an undue burden, and whether there is an acceptable alternative that might be offered to the employee.  Employees are not necessarily entitled to their preferred accommodation. The interactive process, moreover, is a two-way street with employees being likewise required to participate in good faith.

The important take-away for New Jersey employers arising from the Wild decision is that they cannot rely on violation of federal law – i.e., use of cannabis – as the reason for firing an employee, where that employee is a permitted user of medical cannabis under New Jersey law. Rather, an employer must consider whether the individual, and specifically their legal use of medical cannabis, can be reasonably accommodated, just as it would have to consider accommodating an employee’s use of any prescription medication.