Schall and Barasch LLC

UPDATE ON THE WORKPLACE RIGHTS OF NEW JERSEY MEDICAL MARIJUANA USERS!

Richard M. Schall

May 2, 2019

I had written in my February 2019 post on this site about the uncertain state of the law as to whether a New Jersey employer could fire an employee who uses medical marijuana to treat the effects of an illness or injury. At the point in time that article was written, there was only one reported court decision on the issue—from a New Jersey federal court—and in that case the court unfortunately decided against the medical marijuana user. In my February article, I voiced my opinion that this federal court had “gotten it wrong,” and I predicted that, if our state courts examined the issue, the outcome would be different.

Well, I pleased to report that my prediction was accurate, and, in a case decided on March 27, 2019 by the Appellate Division of the New Jersey Superior Court—Wild v. Carriage Funeral Holdings, Inc.—a New Jersey state court has rejected the federal court’s view and instead issued a decision supporting the rights of New Jersey medical marijuana users.

In the Carriage Funeral Holdings case, the employee who brought the suit was fired after he disclosed that he was using medical marijuana to alleviate the symptoms caused by his treatment for cancer. Even though the employee’s use of the medical marijuana had been properly prescribed and licensed by the State, the corporation that fired him argued to the Court that it was permitted to do so. The corporation based its argument on the [admittedly troubling] language contained in the New Jersey Compassionate Use Medical Marijuana Act stating that nothing in that Act “shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace.”

Fortunately, in disagreeing with the corporation’s reading of the Compassionate Use Act, the Court stressed that the cited language from the Act only allowed employers to take action against employees if they were found using medical marijuana “in the workplace.” Since the employee in this case had made clear that he consumed the marijuana only after work and only at home, the Court held that this language did not apply to his situation. Instead, the Court reaffirmed that the New Jersey Law Against Discrimination, entitling employees to reasonable accommodation of their disabilities, does protect New Jersey employees who use medical marijuana outside of the workplace.

We’ve certainly not heard the final word on this issue. It is my understanding that the corporation in the Carriage Funeral Holdings case is trying to get the New Jersey Supreme Court to consider an appeal. In addition, there is a good bill pending in the New Jersey Legislature that would clear up the issue once and for all. We will keep you posted.


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* In every year since 2014, the law firm of Schall & Barasch has been included in the Tier 1 list of best law firms in New Jersey practicing in the field of employment law on behalf of individuals. This list is compiled by U.S. News & World Report. A description of the selection methodology can be found at www.bestlawfirms.usnews.com/methodology.aspx.

** The methodology for the Avvo ratings of Richard Schall and Patricia Barasch can be found at www.avvo.com/support/avvo_rating.

*** In every year since 2009, Richard Schall has been chosen to be included on the list of Best Lawyers in New Jersey practicing in the field of labor and employment law. The Best Lawyers list is issued by Best Lawyers International. A description of the selection methodology can be found at www.bestlawyers.com/about/MethodologyBasic.aspx.

**** In every year since 2005, both Patricia Barasch and Richard Schall have been chosen to be included on the list of Super Lawyers in New Jersey practicing in the field of employment law on behalf of plaintiffs. The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found at www.superlawyers.com/about/selection_process.html.

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