Employers concerned about drug abuse in the workplace received some welcome news with a recently issued decision by Judge Robert Kugler of the United States District Court for the District of New Jersey that neither the New Jersey Law Against Discrimination (“NJLAD”) nor the New Jersey Compassionate Use of Medical Marijuana Act (“CUMMA”) require private employers to waive drug tests for employees who use prescribed medical marijuana. See Cotto v. Ardagh Glass Packing, Inc., et. al., Civ. No. 18-1037 (D.N.J. August 10, 2018).

In Cotto, an employee who operated a forklift truck, who left work on a medical leave of absence due to a workplace injury was required to pass a breathalyzer and urine test in order to return to work. This presented a problem for Plaintiff because he was prescribed and used drugs for pain management, including medical marijuana, due to a neck and back injury he suffered in 2007. The employee explained that he was prescribed medical marijuana and other drugs for pain management, but the employer failed to relent, notifying him that he could not operate heavy machinery while on narcotics – specifically, marijuana. Despite presenting his medical marijuana card and doctor’s prescription, the employee was not permitted to return to work until he passed a drug test. Unable to work without taking the prescribed medical marijuana, the employee remained on an “indefinite suspension.”

As often happens in such cases, Plaintiff sued, asserting claims of disability discrimination, perception of disability discrimination, failure to accommodate and retaliation under the New Jersey Law Against Discrimination (“NJLAD”). The crux of Plaintiff’s claim was that his employer discriminated against him; by refusing to waive the drug test, the employer had failed to reasonably accommodate his disability.

The district court dismissed his claims of discrimination, failure to accommodate and retaliation. As to Plaintiff’s discrimination claims, the central issue was whether Plaintiff was qualified to perform the essential functions of the job despite his unwillingness to meet a condition of his employment (i.e., pass a drug test). Here, although faced with an issue of first impression in New Jersey, the court held that passing a drug test was an essential function of the job and that neither the CUMMA nor the NJLAD required the employer to waive its requirement that employees pass a drug test. Important to the decision was the court’s observation that while the use of medical marijuana might be legal in New Jersey, it was still a crime under federal law. As such, the employee “failed to show that he could perform the ‘essential functions’ of the job” and that employee was “within its rights to refuse to waive a drug test for federally-prohibited narcotics.”

The court also dismissed the employee’s failure to accommodate claim for similar reasons. Because passing a drug test was an essential function of the job, requiring the employer to waive the drug test was not a reasonable accommodation. Finally, the Court dismissed Plaintiff’s retaliation claim because refusing to take a drug test is not a protected activity under New Jersey law. The Bottom Line Cotto, while an unpublished, non-precedential case, provides some important guidance regarding an employer’s right to insist that employees pass drug tests as a condition of employment and in furtherance of providing a drug-free workplace. However, Cotto must be seen in its context. The employee was a forklift operator who handled heavy machinery and could, if under the influence, damage property or seriously injure other persons. The situation might be different where the employee is not in a safety-sensitive position, takes medical marijuana off the job and does not appear under the influence at work. So far, the majority of cases in the United States hold that employers need not waive their drug tests, but marijuana laws are rapidly changing and those changes will be felt in the workplace. Stay tuned. Please let us know if you have any questions or if we can be of assistance.