Marijuana: The Hits Keep Coming Part I

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Employers, particularly on the east coast, have faced a recent barrage of employee-friendly cases related to marijuana use, drug testing and workplace policies. This blog is part-one of a two-part series that covers several of these such cases, their outcomes, and any action items. 

Employers are encouraged to review these cases with qualified legal counsel to determine whether changes are necessary to their drug testing and/or workplace policies. Navigating the marijuana landscape continues to become more complex particularly with a rise in employee-friendly cases law.

Court Orders Reimbursement of Medical Marijuana

In a rather shocking case from New Jersey – which is quickly becoming the hotbed for these cases – an employer was ordered to reimburse an employee for the employee’s medical marijuana purchase.

Vincent Hager v. M&K Construction

In Vincent Hager v. M&K Construction, the employee was working on a construction site when a truckload of concrete was dumped onto him. Following this incident, the employee experienced lower back pain leading to several years of surgeries and pain management attempts. Finally, the now former employee saw another doctor who identified him as a candidate under the New Jersey Compassionate Use Medical Marijuana Act (MMA).
While the employer eventually agreed to reimburse several medical bills and expenses, the compensation judge later ordered the employer to reimburse to medical marijuana expenses as well. In doing so, the judge analyzed the side effects of opioids and marijuana, concluding marijuana was the appropriate option especially since the former employee had a history of opioid addiction.
Upon appeal, the court analyzed the employer’s arguments that such reimbursement would lead them to violate the Controlled Substances Act (CSA). Denying that argument, the court found no conflict between the CSA and the MMA as employers can comply with both without violating the other. Additionally, the court determined the employer was not a private health insurer and was thus not excluded under the MMA from reimbursing the medical marijuana costs. Finally, the court disagreed with the employer’s last argument concluding the compensation judge appropriately considered alternative legal modalities of treatment.

New Jersey Supreme Court – Accommodation Required?

A slightly more recent case from the New Jersey Supreme Court resulted in another head turning decision for employers.

Wild v. Carriage Funeral Holdings, Inc.

The case, Wild v. Carriage Funeral Holdings, Inc., started when an employee – a registered user of medical cannabis under the New Jersey Compassionate Use Act – who worked as a funeral director was in an accident while working. At the time, the employee’s treating physician following the accidented noted “it was clear [the employee] was not under the influence of marijuana, and therefore no blood tests were required.” However, the employer required a drug test in order for the employee to return to work.
The employee was subsequently fired and received conflicting reasons as to why initially. One individual informed him it was due to finding drugs in his system while “corporate” indicated it was a result of a failure to disclosure medication which might adversely impact his ability to perform the role. The former employee then filed suit alleging violations of New Jersey’s Law Against Discrimination (LAD).
The N.J. Supreme Court determined the former employee properly stated a claim under the LAD but did not rule on whether the claim had merit. However, the Supreme Court noted nothing in the Compassionate Use Act requires the accommodation of medical marijuana in the workplace or allows an individual to perform certain positions while under the influence of marijuana. Since neither of these components were triggered in this case, the Supreme Court determined there was no conflict between the LAD and Compassionate Use Act.

Employer Recommendations

Again, employers are encouraged to review these cases with qualified legal counsel to determine whether changes are necessary to their drug testing and/or workplace policies. We saw a rash of new or amended marijuana laws in 2019 – most of which are now in effect – and employers would be wise to review and address these laws.

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