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A funeral director who was fired after revealing he used medical marijuana outside of work to treat his cancer has a basis to sue for disability discrimination under the New Jersey Law Against Discrimination, according to the New Jersey Supreme Court.

But counter to an appellate panel's reasoning below, the court said Tuesday that the New Jersey Compassionate Use Medical Marijuana Act does indeed have an impact on the fired director's existing employee rights.

"The judgment of the Appellate Division is affirmed substantially for the reasons expressed in that court's opinion," the unanimous court said in the per curiam decision. "The Court declines, however, to adopt the Appellate Division's view that 'the Compassionate Use Act intended to cause no impact on existing employment rights.'"

When the case was argued before the Supreme Court on Feb. 4, three groups argued as amici in support of plaintiff Justin Wild: the National Employment Lawyers Association of New Jersey, the New Jersey Attorney General's Office and the American Civil Liberties Union of New Jersey. The groups' attorneys said the justices must decide if the Compassionate Use Act and the LAD could coexist.

The court ultimately said yes.

"The Court concurs with the Appellate Division that plaintiff has stated a claim sufficient to survive defendants' motion to dismiss and that there is no conflict between the Compassionate Use Act and the LAD," the court said Tuesday.

The court added, "In a case such as this, in which plaintiff alleges that the Compassionate Use Act authorized his use of medical marijuana outside the workplace, that Act's provisions may be harmonized with the law governing LAD disability discrimination claims."

According to documents and arguments in the case, after a minor accident in 2016, 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 under the LAD, alleging that his medical marijuana was prescribed, and his termination discriminatory.

Wild was determined not at fault for the May 2016 accident, which occurred while he was working a funeral and his vehicle was struck by a vehicle that ran a stop sign.

The suit claims that David Feeney of Carriage Holdings told Wild that "corporate" was unable to "handle" his marijuana use and that his employment was "being terminated because they found drugs in your system." A June 3, 2016, letter from Carriage advised Wild that he had been terminated because he failed to disclose his use of medical marijuana as medication, which could adversely affect his ability to perform his job duties.

The trial court granted defendants' motion to dismiss after determining that the Compassionate Use Act "does not contain employment-related protections for licensed users of medical marijuana."

The Appellate Division in March 2019 reversed and said Wild had a disability that qualified his use of medical marijuana, and that the LAD makes it unlawful for the employer to terminate him based on the disability. The appellate court rejected Wild's contention that the Compassionate Use Act was in conflict with the LAD, stressing the Compassionate Use Act's express provision that "[n]othing in this act shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace."

"Those words can only mean one thing: the Compassionate Use Act intended to cause no impact on existing employment rights," Appellate Division Judge Clarkson Fisher Jr. wrote in the opinion last year. "The Compassionate Use Act neither created new employment rights nor destroyed existing employment rights; it certainly expressed no intent to alter the LAD."

The appellate court also noted that "just because" the Compassionate Use Act does not "'require … an employer to accommodate the medical use of marijuana in any workplace' does not mean that the LAD may not impose such an obligation, particularly when the declination of an accommodation to such a user relates only to use 'in any workplace.'" Wild had requested off-site and off-work hours use of the medical marijuana, Fisher noted.

On Tuesday, the Supreme Court said Wild's "LAD disability discrimination claim derived in part from his assertion that, outside the workplace, he lawfully used medical marijuana prescribed for him in accordance with the Compassionate Use Act, which decriminalized the use of medical marijuana."

However, the Compassionate Use Act does have an impact on Wild's existing employment rights, said the court. It cited two particular provisions of the Compassionate Use Act: a provision that "[n]othing in [the statute] shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace"; and another stating that the act "shall not be construed to permit a person to … 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."

"We concur with the Appellate Division that at the pleading stage of this case, in which the facts have yet to be developed and plaintiff is entitled to every reasonable inference of fact, plaintiff has stated a claim sufficient to survive defendants' motion to dismiss," the court said. "We share the Appellate Division's view that there is no conflict between the Compassionate Use Medical Marijuana Act and the Law Against Discrimination."

Jamison Mark of the Mark Law Firm in Springfield, representing Wild, said in an email that the decision makes clear that an employer "cannot simply terminate the employee because the manager doesn't like the stigma of marijuana."

Mark added, "It's 2020 and times are changing. Employers are now faced with employees who suffer from medical conditions and qualify for their medical marijuana cards, and now require a workplace accommodation. We are very happy that the Supreme Court Justices and the Appellate Division got this right."

Steven Luckner of Ogletree, Deakins, Nash, Smoak & Stewart in Morristown, for Carriage Funeral Homes, didn't respond to a request for a comment.

The state Attorney General's Office was an amicus. Assistant Attorney General Mayur P. Saxena argued for the office.

"The Attorney General's Office welcomes the Supreme Court's decision in the Wild case. Today's decision reflects the argument in the Attorney General's amicus brief that New Jersey's Law Against Discrimination allows employees with disabilities to sue for discrimination if their employers refuse to reasonably accommodate their need for lawful medical treatment, including medical marijuana in certain circumstances," said the office in an emailed statement.

Elizabeth Zuckerman of Mason, Griffin & Pierson in Princeton, representing amicus NELA-NJ, said the organization "views this decision as a win for employees who test positive for marijuana due to their lawful use of medical marijuana outside the workplace." She added that it "leaves open the possibility that an employer can terminate an employee who seeks to use medical marijuana in the workplace," but "we believe such a case would turn on the facts.

"NJCUMMA does not require employers to allow use of medical marijuana in the workplace, but in certain circumstances an employee would be able to argue that permitting such use would be a reasonable accommodation for a disability," she said.

Dillon McGuire of Pashman Stein Walder Hayden in Hackensack, for amicus ACLU-NJ, issued this statement on Tuesday: "Today was an important victory for employees throughout New Jersey who use medical marijuana. … Despite the scientifically proven benefits of medical marijuana, those patients who chose to treat their ailments with cannabis have been marginalized ever since the Compassionate Use Act was enacted. The Court's decision today was an important step toward securing the rights and dignity that medical marijuana patients deserve."