Photo by Thom Morris.

On March 27, 2019, Judge Fisher, P.J.A.D., held that a medical marijuana patient, who is fired after failing a drug test, has a maintainable cause of action against his employer for violating the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to 49. Wild v. Carriage Funeral Holdings, ___ N.J. Super. ___ (App. Div. 2019).

Plaintiff Justin Wild, a licensed funeral director, was employed by defendant from 2013 to 2016. This employment required plaintiff, among other duties, to direct funerals, conduct visitations, embalm the decedent, prepare death certificates, conduct graveside religious services, and drive the funeral home's hearses and other vehicles.

In 2015, Wild was diagnosed with cancer, at which time his doctor, as part of his treatment regimen and in compliance with the Compassionate Use Medical Marijuana Act, N.J.S.A. 24:61-1 to 16, prescribed medical marijuana.

In May, 2016, while working a funeral, Wild's vehicle was struck by a car that ran a stop sign. Because Wild was injured, he was transported to a hospital emergency room. Although he informed the emergency room doctor that he had a license to possess medical marijuana (and therefore it would obviously be in his system), the doctor found that Wild was clearly not under the influence of marijuana and therefore no blood test was performed. After being released from the hospital, Wild returned home and took pain killers, prescribed by the emergency room doctor, as well as his prescribed dose of medical marijuana.

Later that day, when Wild's employer was advised of what transpired at the hospital, the employer insisted that a blood test was required before Wild could return to work. For this reason, Wild went to an urgent care facility but the doctor there refused to take blood from Wild because the doctor thought it would be illegal and because, in view of the pain killers and the medical marijuana dose taken by Wild after the accident, the results would be positive. Instead, a urine test and breathalyzer test was performed.

The day after the accident, while attending a funeral for a family friend, when asked by his employer, Wild explained that he takes his prescribed doses of medical marijuana, for severe pain, by drinking it, eating it, or smoking it. He also explained to his employer that he never takes his medical marijuana at work; he only takes it when he is home. The following week Wild, after working a four-hour funeral with an assistant funeral director, was very sore so he went home to rest. Several days later, Wild was informed that "corporate was unable to handle his marijuana use and that his employment was being terminated because they found drugs in his system."

The trial court, pursuant to R.4:6-2, granted defendant's motion to dismiss plaintiff's complaint alleging that defendant violated the LAD, holding that "the Compassionate Use Act does not contain employment-related protections for licensed users of medical marijuana." The trial court relied upon a provision in the Compassionate Use Act that "nothing in the Compassionate Use Act requires an employer to accommodate a medical marijuana user."

Judge Fisher, in a well reasoned decision, reversed the dismissal of plaintiff's LAD claim, ruling that although the Compassionate Use Act did not "require" an employer's accommodation for a medical marijuana user, this does not mean that the Act "has immunized employers from obligations already imposed elsewhere" (i.e., by the Law against Discrimination). Judge Fisher noted that "it would be ironic indeed if the Compassionate Use Act limited the Law Against Discrimination to permit an employer's termination of a cancer patient's employment by discriminating without compassion." This is especially so in this case, where Wild did not seek an accommodation for taking his medical marijuana while at work, but only to permit him to use it "off-site or during off-work hours."

Judge Fisher, in considering the relationship between the Compassionate Use Act and the LAD, conceded that the Compassionate Use Act did not require any accommodation in the work place. However, the court pointed out that "just as the Compassionate Use Act imposes no burden on (employers), it negates no rights or claims available to (employees) that emanate from the LAD." In a nutshell, the court concluded that "the Compassionate Use Act does not immunize what the LAD prohibits."

In this author's opinion, this decision makes sense. For example, assume a person is injured as a result of an accident, or is diagnosed with cancer, and, as part of his or her treatment regimen, is given a doctor's prescription for an opioid painkiller, such as oxycodone, vicodin, or fentanyl. So long as the prescription opioid is taken off-site and after normal working hours, most would agree that to fire such employee would be discriminatory and clearly violate the LAD. Why should it be any different if, instead of the prescription opioid, the patient is prescribed medical marijuana? After all, the whole idea behind the medical marijuana law is to be "compassionate."

Louis Locascio, a Monmouth County Superior Court judge from 1992 until 2009, is now of counsel with the Red Bank office of Gold, Albanese, Barletti & Locascio, where he heads up their civil and family mediation/arbitration department. He is a certified civil and criminal trial lawyer.