Dive Brief:
- A New Jersey funeral director can continue with a lawsuit alleging he was improperly fired for using medical marijuana, the state's supreme court held (Wild v. Carriage Funeral Holdings dba Feeney Funeral Home, LLC, et al., No. 082836 (Supreme Court of New Jersey, March 10, 2020)).
- Justin Wild was diagnosed with cancer in 2015 and his doctor prescribed marijuana as part of his treatment, as allowed by New Jersey’s Compassionate Use Medical Marijuana Act. Wild was fired in 2016 for using medical marijuana and sued, alleging the employer violated New Jersey’s Law Against Discrimination, which protects employees with disabilities from discrimination and requires accommodation.
- A trial court dismissed Wild’s claims, reasoning that the Compassionate Use Act "does not contain employment-related protections for licensed users of medical marijuana." The appeals court reversed, stressing that Wild only sought an accommodation that would allow his continued use of medical marijuana outside of work, and the supreme court affirmed the ruling.
Dive Insight:
The decision means 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," according to a statement emailed to HR Dive from the New Jersey Attorney General’s office, which participated in the arguments.
With regard to hiring decisions, the NJ AG also said "the New Jersey Law Against Discrimination’s requirements concerning reasonable accommodations for individuals with disabilities apply to job applicants as well as to current employees."
Wild was fired before the July 2019 changes to the state’s medical marijuana act that provide employment protections for workers who take part in the state’s medical marijuana program. And in light of this most recent ruling, employers in the state should be prepared to engage in the interactive process if an employee discloses medical marijuana use outside of the workplace or tests positive for marijuana use, Littler attorneys said in a blog post.
Compliance with marijuana laws is a growing area of concern for HR professionals, according to a XpertHR survey released earlier this year. Almost a quarter (24.6%) of the more than 700 respondents to the study reported challenges related to medical and recreational marijuana laws, along with managing employee drug use — a significant increase from the 5.7% reporting these concerns in 2017.
It’s no surprise that HR is facing compliance challenges in the area, given that an increasing number of states are adopting laws allowing such use, while it remains illegal at the federal level. Experts recommend that employers become familiar with the medical marijuana laws that apply to their jurisdictions and reconsider potentially problematic "zero tolerance" drug policies to instead focus on dealing with behaviors that negatively impact performance and safety.
