On January 18, 2010, the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), N.J.S.A. 24:6I-1 et seq., was signed into law to protect from arrest and other penalties patients who use marijuana to alleviate suffering from debilitating medical conditions, as well as their physicians, primary caregivers, and those who are authorized to produce marijuana for medical purposes.

But what happens when the user of medical marijuana fails an employer’s drug test or refuses to take the test? That issue was recently addressed by the Federal District Court of New Jersey in Cotto v. Ardagh Glass Packing, Inc. In that case, a forklift driver employed by the employer was lawfully prescribed medical marijuana. The employer required the employee to undergo a drug test. Despite the employee’s lawful prescription for medical marijuana, the employer refused to waive the drug test for the employee, placed him on an indefinite suspension, and refused to return him to work unless and until he took the drug test. The employee filed suit, claiming that the employer’s acts constituted disability discrimination, and that the employer violated the New Jersey Law Against Discrimination (LAD) by refusing to provide him with an accommodation.

A case of first impression in New Jersey, the District Court held that the employer’s refusal to waive the drug test did not violate anti-discrimination laws. While an employer may not discriminate against an employee who is disabled, the District Court held that the LAD does not require an employer to accommodate medical marijuana by waiving the drug testing of employees who are prescribed marijuana. The court made this distinction on the grounds that marijuana is a federally prohibited substance. While CUMMA provides an affirmative defense to those using medical marijuana in the State of New Jersey, the court nevertheless held that “[n]othing within it . . . requires an employer to permit the use of medical marijuana in the workplace.”

It is unlikely that this will be the last word on medical marijuana in the workplace. Employees should take care to familiarize themselves with their workplace drug policies, and be aware that the use of medical marijuana may create complications for them if such use violates their employers’ drug policies. If you have any questions about the interaction between the use of medical marijuana and your status as an employee, please feel free to reach out to the Zazzali Firm to discuss further.