Marijuana Law Does Not Compel Employer To Waive Its Drug-Testing Policy

Kollman & Saucier
Kollman & Saucier

Last year, I blogged about Maryland’s medical marijuana law and its potential implications on drug-free workplaces and drug testing policies.  Although Maryland courts (still) have not addressed the questions in the employment law context, courts in other jurisdictions with medical marijuana statutes have issued rulings that could provide insight on some of the issues.  Recently, a federal district court in New Jersey did just this in Cotto v. Ardagh Glass Packing, Inc., Civil No. 18-1037 (RBK/AMD) (8/10/18) (unpublished).

According to the allegations in the Complaint, Daniel Cotto injured himself at work by hitting his head on a forklift.  His employer subsequently asked him to take a drug test as a condition of continued employment.  He informed the employer that he could not pass the drug test because he took medically-prescribed marijuana.  As a result, the employer placed Cotto on indefinite suspension and did not let him return to work until he passed a drug test.  Cotto sued for disability discrimination, arguing that the decriminalization of marijuana under the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), together with the New Jersey Law Against Discrimination (LAD), required the employer to provide him with an accommodation.  The court framed the issue as whether the employer was required by law to waive the drug test condition.

CUMMA contains two key provisions that the court discussed.  First, CUMMA shields qualifying medical marijuana users from “be[ing] subject[ed] to any civil or administrative penalty, or denied any right or privilege, . . . related to the medical use of marijuana[.]” N.J. Stat. Ann. § 24:6I-6(b).  (As noted in my previous blog, similar language appears in Maryland’s medical marijuana statute and has been interpreted by a Massachusetts state court as protecting a disabled employee’s statutory right to a reasonable accommodation.)  Second (and unlike the Maryland law), nothing under CUMMA “shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace[.]” N.J. Stat. Ann. § 24:6I-14.

The court agreed with Cotto that CUMMA neither invalidated his disability discrimination claim, nor waived the employer’s obligations under the LAD.  The court narrowly held, however, that CUMMA does not compel an employer to waive its drug testing policy requirements.  As a result, the employer’s decision to require Cotto to pass a drug test before returning to work did not violate his rights under the LAD.


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