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Judge Kugler's opinion in Cotto is unpublished and has no binding precedential impact on future New Jersey state or federal court decisions, but other courts within and outside New Jersey may adopt the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.
Copyright © 2018 by Ballard Spahr LLP.
(No claim to original U.S. government material.)
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher.
This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.