New Jersey Employers May Be Required to Accommodate an Employee’s Use of Medical Marijuana Outside the Workplace

Q.  Now that medical marijuana is legal in New Jersey, does the Law Against Discrimination require employers to provide an accommodation for medical marijuana use?

A.  While New Jersey employers are not required to accommodate the use of medical marijuana in the workplace, they may be required to accommodate an employee’s off-duty use of medical marijuana outside of the workplace, according to a recent decision. On March 27, 2019, the New Jersey Appellate Division reversed a lower court’s ruling that state law does not provide employment protections for medical marijuana users. Although the court affirmed that employers are not required to accommodate an employee’s use of medical marijuana in the workplace, the court found that failure to accommodate off-duty use of medical marijuana outside the workplace could give rise to liability under the New Jersey Law Against Discrimination (NJLAD).

In Wild v. Carriage Funeral Holdings, Inc., the plaintiff, a funeral director, alleged that he was discriminated against when the employer fired him for using medical marijuana, despite the fact that he had a prescription to use it to treat pain caused by cancer.  In 2016, the plaintiff was injured in a car accident while on the job, resulting in a trip to the emergency room.  At the hospital, he informed the treating staff that he had a license to use medical marijuana.  However, the physician in charge did not request a drug test based on an assessment that the plaintiff was not impaired at the time of the accident.

Despite the doctor’s assessment, the employer later requested that the plaintiff take a drug test, to which the plaintiff reluctantly agreed. After he failed the test, the plaintiff was terminated.  The employer first told the plaintiff that he was being terminated because the test revealed that he had drugs in his system.  However, the employer later sent a letter stating that the plaintiff was terminated not because of his use of medical marijuana, but rather because he failed to disclose his use of a medication which might affect his ability to safely perform his job duties, as required by the employer’s policy.

The plaintiff then filed suit, alleging that the employer violated the NJLAD by terminating his employment based on a positive drug test, given that he was prescribed medical marijuana by his doctor, as permitted by the New Jersey Compassionate Use of Medical Marijuana Act (CUMMA). In granting the employer’s motion to dismiss, the trial judge determined that CUMMA carries no employment-related protections for licensed users of medical marijuana.  The lower court explained that the termination was justified based on a positive drug test and a violation of the employer’s drug use policy.

Reversing the lower court’s decision, the Appellate Division first rejected the plaintiff’s argument that the disability discrimination protections under CUMMA and the NJLAD were in conflict, pointing to the language in CUMMA providing that “[n]othing in this act shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace.” As the court explained, “[t]hese words are unambiguous; they require no interpretation and permit no deviation.”  The court emphasized that CUMMA “neither created new employment rights nor destroyed existing employment rights” that may be available to employees under other statutes like the NJLAD.

Next, the Court noted that the plaintiff did not claim that the employer failed to accommodate his use of medical marijuana in the workplace, but rather, that the employer failed to accommodate his off-duty use of medical marijuana.  As the court explained, even if CUMMA does not obligate employers to provide a reasonable accommodation for medical marijuana use in the workplace, such an obligation may arise under the NJLAD.  Given that the plaintiff did not request an accommodation to use medical marijuana in the workplace, the Appellate Division concluded that his NJLAD claim should not have been dismissed.  The Appellate Division reversed and remanded the case for further proceedings on the question of whether an employee’s off-duty use of medical marijuana should have been accommodated under the facts presented.

The Appellate Division’s decision in Wild v. Carriage Funeral Holdings, Inc. indicates that, while CUMMA does not require employers to accommodate medical marijuana use in the workplace, the failure to accommodate a medical marijuana user, at least when the use is outside of the workplace and during non-work hours, could lead to liability under  the NJLAD.

At the very least, employers should exercise caution when taking an adverse employment action against an employee who has a prescription for medical marijuana following a positive test. Because drug tests can detect marijuana in a person’s body for some period of time after it is used, a positive test may reveal an employee’s use of marijuana during non-working hours.  This raises the possibility that, like in Wild, an employee who is not impaired at the time of a workplace accident could nevertheless test positive for marijuana use afterwards, based on use that occurred outside the workplace.  Given that the NJLAD may require an accommodation for an employee’s off-duty use of medical marijuana, employers should consult with legal counsel prior to disciplining or terminating an employee who tests positive for marijuana.

Rogers Stevens

In ADA Website Accessibility Cases, Remediation May Be a Successful Defense

Q.  What can I do to protect my company from lawsuits claiming that our website is not accessible to visually-impaired individuals?

A.  Companies, universities and other organizations around the country continue to face an onslaught of lawsuits brought under the Americans with Disabilities Act (ADA) alleging that commercial websites cannot be appropriately accessed by visually impaired individuals. A recent opinion from the U.S. District Court for the Southern District of New York provides a potential roadmap for companies to stave off litigation by taking action to remediate barriers to full website accessibility.

For full article, click here.

Jeffrey M. Goldman, Tracey E. Diamond, and Victoria D. Summerfield

Two Federal Agencies Make it Easier to Establish Independent Contractor Status

Q.  What is the standard for determining whether a worker is an independent contractor for purposes of federal wage and hour laws and union organizing conduct?

A.  Recently, both the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB) issued documents supporting independent contractor status, evidencing the more pro-employer stance of the Trump administration as compared to the Obama administration. Although those documents — an opinion letter from the DOL and an advice memorandum from the NLRB’s Office of General Counsel — apply only to misclassification claims under the Fair Labor Standards Act (FLSA) and the National Labor Relations Act (NLRA), respectively, they provide helpful guidance to companies on structuring their independent contractor relationships to minimize the risk of a misclassification claim. Companies should be mindful, however, that other laws — such as state wage and hour, unemployment compensation and workers’ compensation statutes — may impose higher burdens for proving that individuals are independent contractors.

To read the full article, click here.

Susan K. Lessack and Tracey E. Diamond

New York City Passes Law Prohibiting Pre-Employment Marijuana Testing

Q: I heard New York City is banning employers from doing pre-employment drug testing for marijuana. What do I need to know?

A: Effective May 10, 2020, New York City employers are prohibited from testing prospective employees for marijuana or tetrahydrocannabinols (the active ingredient in marijuana) as a condition of employment.  The law applies to all prospective employees in New York City, regardless of whether the employer is located in New York City.

The law has a number of exceptions, including for positions that require a commercial driver’s license or the supervision or care of children, medical patients, or vulnerable persons. The law also does not apply to drug testing required by certain contracts and laws, including federal or state statutes, regulations, or orders that require drug testing for the purpose of safety or security.

The law reflects the growing acceptance of marijuana in New York, both for recreational and medicinal use. Under existing New York law, possession of up to 25 grams of marijuana has been decriminalized, and it is legal for a certified patient to possess and use medical marijuana.  Existing New York law also specifically protects registered certified medical marijuana users from adverse employment actions based on their health conditions and associated marijuana use.

The law itself is quite short, and leaves a number of questions unanswered, such as whether the law has any impact on marijuana testing of current employees, and whether the law applies to New York City residents who apply for positions outside of the city. The City is expected to release rules addressing such details in advance of the effective date.

To prepare for the new law, employers should update employment applications, job postings, and drug testing policies. Employers should also analyze whether any of their positions are exempt from the new law.

Jessica Rothenberg

NLRB to Issue New Rules on Whether Student Workers Can Unionize

Q.  Are students who work in connection with their studies considered to be “employees” and therefore able to unionize?

A.  In a significant development for private colleges and universities, the National Labor Relations Board (NLRB) announced that it intends to propose rules that would establish a “standard for determining whether students who perform services at private colleges or universities in connection with their studies are ‘employees’” under the National Labor Relations Act (NLRA). The NLRB currently projects that the proposed rules will be issued in September 2019. It is widely expected that the rules, which will be proposed by the Republican-controlled Board, will make it more difficult for students to be classified as “employees” for the purpose of forming unions.

For more information, click here.

Christopher J. Moran & Lee E. Tankle