Executive Summary: In Cotto v. Ardagh Glass Packing, Inc., 2018 U.S. Dist. LEXIS 135194 (D.N.J. Aug. 10, 2018), a case of first impression, the federal district court held that neither New Jersey’s Law Against Discrimination (LAD) nor Compassionate Use Medical Marijuana Act (CUMMA) require an employer to waive a drug test as a condition of employment. The court dismissed claims of discrimination, retaliation, and failure to accommodate the plaintiff’s disability.

Background: The facts are increasingly familiar in today’s workplace: employee Daniel Cotto, Jr., was injured on the job, sent for medical treatment, and told to pass drug and alcohol screens before returning to work. Cotto explained he could not pass the drug test because he was using prescription marijuana and other pain killers to treat a back ailment long known to Ardagh. Ardagh placed Cotto on indefinite suspension pending a passing drug screen. Cotto sued, and Ardagh moved to dismiss the complaint, arguing no employer is legally obligated to waive a drug test to allow any employee to return to work.

Disability vs. Treatment: The court accepted Cotto’s argument he was qualified to perform his work as a forklift operator and that he suffered from a known disability (i.e., neck/back pain). The key distinction here is that Cotto did not claim Ardagh discriminated against him based on his disability; rather, he claimed to be the victim of discrimination because Ardagh refused to accommodate his use of medical marijuana by waiving a drug test.

This required analysis of whether “treatment” of the disability can be distinguished from the “disability” itself. The court gave the cogent example that discrimination against wheelchair use (i.e., the treatment) is inseparable from discrimination against the disability. That was absent here because Ardagh had no objection to Cotto’s disability but only “with a consequence of his treatment.” This follows the LAD, which prevents discrimination premised upon the disability, not upon conduct resulting from the disability. Because the dispute was based upon conduct resulting from treatment (passing a drug screen), Cotto’s disability itself was not an issue. Cotto’s possession of a medical marijuana card and a note from his doctor stating that he could operate machinery while taking prescription drugs were equally unpersuasive.

What about CUMMA? The court held nothing within CUMMA supports or invalidates Cotto’s claims or requires an employer to permit the use of medical marijuana in the workplace. Likewise, CUMMA does not waive an employer’s obligations under the LAD. Citing precedent from jurisdictions where recreational marijuana already is legal, the court confirmed decriminalization of marijuana does not shield employees from adverse employment actions.

Besides dismissing the discrimination claim, the court also rejected Cotto’s failure to accommodate claim under the LAD because neither CUMMA nor the LAD require Ardagh to waive its drug test as a condition for continued employment. Likewise, his retaliation claim failed because refusing to take a drug test is not a protected activity under New Jersey law.

Bottom Line: The federal court predicts the state judiciary will reach the “similarly obvious conclusion” that the LAD does not require accommodation of an employee’s use of medical marijuana with a drug test waiver. This follows New Jersey courts’ general acceptance of drug testing in private employment. It would not, however, be surprising if the competing bills pending in our legislature to legalize adult-use recreational marijuana carve out further protections for New Jersey employees.