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Every maze should have a beginning and an end. The beginning of the medical marijuana maze is fairly uncomplicated. The use, manufacturing, possession, and sale of marijuana is illegal under federal law under the federal Controlled Substances Act (21 U.S.C. §801 et. seq.). Despite the illegality concerning marijuana under federal law, New Jersey passed the Compassionate Use Medical Marijuana Act (N.J.S.A 24:6I-1 et seq.) (NJCUMMA).

NJCUMMA provides protection from arrest, prosecution, property forfeiture, criminal and other penalties by the State of New Jersey for those patients who use medicinal marijuana to alleviate suffering from certain medical conditions, as well as their physicians, primary caregivers, and those who are authorized to produce, process and dispense marijuana for medicinal purpose. However, despite the protections found in NJCUMMA, the law lacks a provision requiring employers to accommodate the use of medical marijuana, stating that "[n]othing in [the CUMMA] shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace." As a result, the following cases ensued.

In August 2018, New Jersey U.S. District Court Judge Robert Kugler held, in Cotto v. Ardagh Glass Packaging, 2018 WL 3814278 (D.N.J. Aug. 10, 2018), that an employer's refusal to waive its drug test requirement for a forklift driver using medical marijuana was not discriminatory. Since the case concerned conduct resulting from the treatment, not the disability itself, Judge Kugler held that passing the drug test was an essential function of the job. Therefore, the disability discrimination case against Ardagh Glass Packaging was dismissed.

In February 2019, for the first time in New Jersey, in the case of Wild v. Carriage Services, 2018 WL 6704731 (N.J. Law Div. March 27, 2019), the Superior Court addressed the employment issues involving medical marijuana. The plaintiff, Jason Wild, a licensed funeral director, was diagnosed with cancer. To help alleviate the effects of the cancer, Wild's doctors prescribed medical marijuana. Wild worked during the day at the funeral home and smoked medical marijuana at night to help ease his pain. In 2016, he was involved in a car accident, which occurred during the course of his employment, allegedly through no fault of his own or because of his use of marijuana.

Wild's employer, Carriage Funeral Holdings, learned about his medical marijuana use when either he or his father disclosed it following the accident. Carriage demanded a drug test, which came back positive. Carriage terminated Wild based on the positive result and his violation of its drug and alcohol policy, which requires employees to "advise their supervisor if they are taking any medication that may adversely affect their ability to perform assigned duties safely."

Wild filed a lawsuit against Carriage, alleging violations of the New Jersey Law Against Discrimination (NJLAD). Carriage filed a motion to dismiss Wild's complaint. In support of its motion, Carriage made the following arguments: 1) because Wild never requested an accommodation related to his medical marijuana use, he did not have a valid claim pursuant to the NJLAD; and 2) the CUMMA is preempted by federal law. The court held that CUMMA does not contain employment-related protections for licensed users of medical marijuana, and that no accommodations are required to be made for medical marijuana usage in the workplace, although the court did not address the definition of "in the workplace." Therefore, an employer may lawfully terminate an employee for a failed drug test even if usage is based on prescription use of marijuana.

Wild appealed, arguing that the court should not have relied on CUMMA to dismiss his NJLAD claims. Wild v. Carriage Funeral Holdings, 458 N.J. Super. 416 (App. Div. 2019). On March 27, 2019, the Appellate Division held that, while CUMMA does not specifically protect employees who use medical marijuana, Wild may still have a claim under the NJLAD. The court did not decide the issue but held that there were enough facts to survive a motion to dismiss his discrimination and failure-to-accommodate claims.

On July 2, 2019, the Jake Honig Compassionate Use Medical Cannabis Act (the Jake Honing Act) was signed, which amended the NJCUMMA in various respects. One of the amendments effectuated by the Jake Honig Act is that the law now prohibits employers from taking adverse action based solely on the fact that a person is a registered medical cannabis patient. Adverse action includes: refusing to hire an applicant; terminating an employee; requiring an employee to retire; and discriminating against an employee in compensation or in any terms, conditions or privileges of employment. Additionally, the law provides protections for current and prospective employees who test positive for cannabis. Specifically, the employer must provide the individual with written notice that he/she can provide a legitimate medical explanation for the positive test result or can request a confirmatory retest of the original sample. Within three days after receiving the written notice, the individual can submit information to the employer to explain the positive test result or can request a confirmatory retest of the original sample.

The Jake Honig Act expressly exempts employers that would be in violation of federal law, would lose a federal contract or federal funding, or would result in a "loss of a licensing-related benefit pursuant to federal law" if the employer failed to enforce their drug-free work space policy.

Moreover, the law does not permit employees to be impaired at work even if the impairment is caused by medical marijuana.

On July 16, 2019, the NJ Supreme Court said it will hear the Wild case. Wild v. Carriage Funeral Holdings, 2019 WL 3226685 (N.J. July 11, 2019) (granting certification). The question to be addressed by the court is whether "the New Jersey Compassionate Use Medical Marijuana Act, which declares that 'nothing' in the Compassionate Use Act 'require[s]' an employer to accommodate a medical marijuana user, preclude[s] a claim by an employee against an employer based on, among other things, the Law Against Discrimination."

The Supreme Court's review of the Wild case and the new Jake Honig Act serve as reminders to employers to exercise caution if an employee is found to be using medical marijuana.

The end of the medical marijuana maze has yet to be found.

Tracy Armstrong is a shareholder in the Employment Law and Cannabis Law teams at Wilentz, Goldman & Spitzer, in Woodbridge. She is a member of the NJSBA's Cannabis Law and Employment Law Committees. Lisa Gora is an attorney at the firm whose practice focuses on corporate, healthcare and cannabis law. She also serves as Secretary of the NJSBA's Cannabis Law Committee.