United States: New Jersey Federal Judge Finds Medical Marijuana User Cannot Compel Employer To Waive Employment Drug Testing Requirements

by Sherri A. Affrunti and Melissa M. Ferrara

The United States District Court of New Jersey recently dismissed an employee's disability discrimination, failure to accommodate and retaliation claims, holding that neither the New Jersey Law Against Discrimination (LAD) nor the New Jersey Compassionate Use Medical Marijuana Act (CUMMA) required the employer to waive its drug testing requirements.

In Cotto v. Ardagh Glass Packing, Inc., No. 18-1037, employee-plaintiff Daniel Cotto Jr. sustained an injury at work while operating a fork lift. Consistent with its practices, the employer, Ardagh, required that he pass a breathalyzer and urine test before he could return to work. Cotto explained that he was taking prescription medications, which he was told would not be a problem. However, in subsequent discussions, the company relayed concerns about Cotto's use of medical marijuana and placed him on indefinite suspension until he could pass the drug test. Cotto objected, presenting his medical marijuana card and prescription, but Ardagh refused to relax the drug testing requirement.

Cotto then filed suit, claiming the company's refusal to waive the drug test constituted disability discrimination, a failure to accommodate his disability, and retaliation. Ardagh moved to dismiss Cotto's Complaint, arguing that applicable New Jersey law, and CUMMA specifically, does not mandate an employer's acceptance of medical marijuana use or require it to waive drug testing for substances that are illegal under federal law.

In considering Cotto's discrimination claim, the Court noted that while no court had addressed CUMMA's effect on the LAD, other non-New Jersey courts have concluded that the decriminalization of medical marijuana does not shield employees from adverse employment action except where expressly provided by statute. The Court then found that while CUMMA decriminalizes medical marijuana usage and removes the threat of civil sanctions, it specifically states that it should not be construed to require employers to permit the use of medical marijuana in the workplace, which neither invalidated nor supported Cotto's claims. The Court thereafter held the employee's disability discrimination claim failed for the "obvious" reason that "the LAD does not require an employer to accommodate an employee's use of medical marijuana with a drug test waiver" – citing New Jersey courts' determinations that drug testing is generally acceptable in private employment. Thus, Cotto could not prove that he could perform the essential functions of his job.

Similarly, the Court held that Cotto could not prove a failure to accommodate claim because neither CUMMA nor the LAD requires an employer to waive its drug testing requirement. Finally, because refusing a drug test is not a protected activity, the Court dismissed the employee's retaliation claim.

The Cotto decision is unpublished and therefore not controlling precedent under New Jersey federal or state law. However, the decision is persuasive authority for New Jersey private employers to refuse to waive drug tests for medical marijuana in similar situations while the substance remains federally-prohibited. Notably, though, New Jersey's Governor and legislature have discussed their intention to expand marijuana use protections, making it especially important for employers to stay tuned for changes in the law which may ultimately enact workplace protections for medical marijuana users.

Moreover, multistate employers must be aware of the specific laws in all of the states in which they operate – and if those laws provide for workplace protections for marijuana users – before taking adverse employment actions or refusing to accommodate such use.