A federal district judge in Camden, New Jersey, recently concluded that an employer did not violate the New Jersey Law Against Discrimination (NJLAD) or the New Jersey Compassionate Use of Medical Marijuana Act (NJCUMMA) when it refused to waive its requirement that an employee who had a prescription for medical marijuana must submit to a drug test upon his return to work.

In Cotto v. Ardagh Glass, Inc., plaintiff Daniel Cotto, Jr., a forklift operator, hit his head while working and was sent for a medical examination. Pursuant to Ardagh's policy, Mr. Cotto was required to take a drug test as a condition to return to work. However, Mr. Cotto sought a waiver of this requirement because he had a preexisting injury—of which Ardagh was aware—for which he was prescribed medical marijuana and other pain medication, including Percocet. Ardagh refused to grant him such a waiver.

Mr. Cotto filed suit, alleging that Ardagh discriminated against him due to his disability in failing to provide him with an accommodation, i.e., a waiver of its drug test requirement as a condition to return to work.

In dismissing Mr. Cotto's claim, Judge Robert Kugler explained that current federal law, the Controlled Substances Act, prohibits the use of marijuana. He also recognized that, although the NJCUMMA decriminalized the use of prescribed medical marijuana under state law, "nothing within [NJCUMMA]…requires an employer to permit the use of medical marijuana in the workplace."

Finally, Judge Kugler noted that Ardagh's alleged unlawful action—requiring a return-to-work drug test—emanated from the treatment of an alleged disability, rather than from the disability itself.

Judge Kugler's opinion in Cotto is unpublished and has no binding precedential impact on future New Jersey state or federal court decisions, but other courts within and outside New Jersey may adopt the reasoning Judge Kugler used in cases where employers maintain similar policies. It may also signal how courts deal with requests for reasonable accommodations involving the use of marijuana in other contexts.

Employers should keep in mind, however, that state statutes regarding the medical and recreational use of marijuana vary.

Ballard Spahr's Labor and Employment Group regularly advises employers in compliance with the New Jersey Law Against Discrimination and in navigating complicated issues surrounding medical marijuana in the workplace.

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