After a minor accident in 2016, funeral director Justin Wild revealed to his employer, Carriage Funeral Holdings Inc., that he was taking medical marijuana to treat his cancer. The funeral home terminated him shortly thereafter, and Wild filed suit claiming he was discriminated against under New Jersey law.

Hearing arguments Tuesday in Wild v. Carriage Funeral Holdings, the state Supreme Court is considering whether to uphold the Appellate Division's ruling that the funeral home was required to accommodate Wild's use of medical marijuana as part of his treatment as allowed under the state's Compassionate Use Medical Marijuana Act and whether Wild's discrimination claim under the Law Against Discrimination is valid.

The justices must decide how the compassionate use act and the LAD coexist in a case that apparently could have huge implications for medical marijuana users throughout the state.

Three groups argued as amici in support of Wild on Tuesday: the National Employment Lawyers Association of New Jersey, New Jersey Attorney General's Office and American Civil Liberties Union of New Jersey.

On behalf of NELA, Elizabeth Zuckerman of Mason, Griffin & Pierson in Princeton said the case "presents an opportunity for the court to address the interplay between NJ CUMMA and the NJ LAD."

"The primary issue on appeal is whether a 'qualifying patient' under the NJ CUMMA who has been terminated from employment because he tested positive for marijuana has a civil remedy against his employer under the NJ LAD for disability discrimination," Zuckerman said.

Steven Luckner of Ogletree, Deakins, Nash, Smoak & Stewart in Morristown, who represents the Keyport-based funeral home, argued Tuesday that an employer has the right to fire an employee who tests positive for marijuana—which was the case prior to CUMMA taking effect, and still is, he said.

"The new law did not make marijuana legal—it decriminalized medical marijuana," Luckner told the justices. "The workplace is broader. It has to do with drug tests that happen in the workplace. It goes without saying you don't have to be using [medical marijuana] in the workplace. … Under our jurisprudence, CUMMA decriminalized the use of marijuana for people with a [doctor's] recommendation."

Justice Jaynee LaVecchia asked Luckner: "Can [the two laws] be harmonized … for an employer to make a reasonable accommodation for a person like Mr. Wild?"

Luckner responded: "The only request for an accommodation was to waive the requirement of the drug test. Wild did not ask to waive the drug test. The point here is, there was no accommodation required in this situation."

Justice Barry Albin asked: "There is nothing to suggest [Wild] was unable to do his job—the central functions—as funeral director?"

Luckner responded: "The jurisprudence in New Jersey stated it doesn't matter. [Employers] don't need to accommodate. That has been the law. On whether or not an employer is required to accommodate medical marijuana use, the position in this state has always been they don't have to. We don't get to have it both ways because of the Compassionate Use Medical Marijuana Act." Luckner said the case should be decided on the original act, rather than the amended version.

CUMMA was signed by former Gov. Jon Corzine on Jan. 18, 2010. This past July, it was amended by what's known as the Honig Act to include several job protections to medical marijuana users and creating new drug testing procedures.

After the minor car crash in 2016, Wild was taken to an emergency room, where he told hospital staff he was using medical marijuana. Wild was not at fault for the crash, according to court documents.

Carriage learned of Wild's marijuana usage from the ER because it was considered work-related. After he was ordered to take a drug test, Wild was fired for violating a company policy requiring employees to tell their supervisor if they are using any medication that may impact their ability to safely perform their duties, documents said.

Wild claimed in his suit that he was unlawfully discriminated against for using medical marijuana as permitted by law. But a trial judge dismissed the suit on grounds that the compassionate use act does not require an employer to accommodate medical marijuana.

Wild appealed, and Appellate Division Judges Clarkson Fisher Jr., Richard Hoffman and Karen Suter disagreed. "Because the Compassionate Use Act declared it should not be construed to 'require' an accommodation does not mean such a requirement might be imposed by other legislation," the panel said when it reversed dismissal of the case March 27, 2019. "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," Fisher wrote in the 24-page opinion.

"The issue is very narrow," said Jamison Mark of The Mark Law Firm in Springfield, who represents Wild, in his opening statements. He said the appeals court got it right. "There are not new burdens for employers and not new rights for the employees. This statute merely says that an employer has to accommodate use of medical marijuana in the workplace."

He added that "each statute has its own purpose without conflict to the other."

Justice Anne Patterson asked, "Did the Appellate Division go too far?"

"I don't think so. An employer can't turn a blind eye after an employee tests positive and tells them why marijuana is in his system," Mark said. "They can't say, 'We really don't care, we are going to fire you anyway.' The employer knew before Wild tested that he had the [medical marijuana] card. … He was fired amid allegations he failed a drug test after he took medical marijuana that impaired his ability to do his job."

"Is there a separate issue here—whether you are using Percocet or marijuana—and you don't disclose to your employer you are taking it and it impairs your job?" Justice Lee Solomon asked Mark directly. "Is this really about accommodation or whether marijuana or any other painkiller—being taken by someone whether they are driving, embalming, or whatever—do we need to know what the risks are? Isn't that a separate defense for a separate issue?"

Mark replied: "We don't know what the impairment was. That is not our issue here."

Mark told the justices that the medical marijuana law does not require disclosure.

Patterson said: "These two statutes seem to hinge on communication between the employer and employee—that there needs to be some disclosure by the employee, or for the employee to advise the employer that they are taking medication."

Mark responded, "You want to work in a place where you are productive and you enjoy. It would be ideal if the employee … reveals they take this medication to make them feel better, and the employer says, 'What can we do to help you?' That would be ideal."

Justice Faustino Fernandez-Vina asked Mark, "What is the factual issue?"

"We have stated [Wild] was not adversely affected taking medical marijuana," Mark answered. "Once the employer was made aware that Wild has a card and a debilitating medical condition, Wild didn't verbalize a request for accommodation after the accident, only to continue use of medical marijuana to be pain free. Factually, he knew he was going to fail the drug test."

Mayur Saxena of the state AG's office delivered an amicus argument in support of Wild.

"In the attorney general's view, the Appellate Division correctly concluded that CUMMA does not preclude a claim against an employer for failure to accommodate the disability of an employee under the LAD," Saxena told the court.

Later, in answering a question from Albin on what constitutes reasonable accommodation, Saxena said: "The statute has to do with what is required of the employer. CUMMA created for the first time an entitlement to possess lawful marijuana for medical use. It does not include a requirement for the employer to allow use of marijuana in the workplace. An employer must provide a reasonable accommodation but not one that causes undue hardship."

Employers can't inject themselves into personal medical decisions of the employee, said Dillon McGuire of Pashman Stein Walder Hayden in Hackensack, who argued on behalf of the ACLU-NJ. "The court's decision in this case will have far broader implications for employees using medical marijuana throughout the state of New Jersey."

"A clear message must be sent to employers that, absent compelling circumstances, they cannot dictate their employees' access to the medications that alleviate their pain. Every one of us has the constitutional and common law right to make our own medical decisions, and those decisions are ours and nobody else's to make," McGuire said.

Luckner disagreed. He said the heart of the case has to do with what employers are being asked to do.

"The Appellate Division essentially wants to carve out … to create a new protective class of medical marijuana users—and impose new rules on employers—that they can't just fire someone for testing positive," Luckner said in his rebuttal.

"There is nothing in CUMMA that requires" accommodation of medical marijuana use, and the LAD doesn't require that "an employer has to accommodate illegal activity," he said. "It is a question of law whether an employer is allowed to terminate an employee for testing positive for a drug. That's what this is about."