The passage of recreational and medicinal marijuana laws all over the country has created a legal quagmire for businesses. Many businesses choose to drug test new applicants or employees before an official decision on hiring is made. And drug tests are nearly always administered following a work-related injury or accident. These drug tests are never 100 percent accurate, and in the case of marijuana many of them can detect THC months after use.
In other words, a positive test result might bar a person from finding employment but it does not mean that they are using the drug at that moment — or even months beforehand. Should this be legal? Businesses have a lot of decisions to make. Courts have even more!
Senate Bill No. 21 legalized possession and distribution of recreational weed in New Jersey. This has resulted in a number of cases reaching the docket of the New Jersey Supreme Court.
Wild v. Carriage Funeral Holdings Inc., 241 N.J. 285 was a case between a cancer-ridden funeral director who had been prescribed medical marijuana and his employer. He was given a drug test by doctors after a traffic accident (which wasn’t even his fault), after which he was fired from his job — even though doctors did, in fact, determine that he was not driving under the influence when the accident occurred.
Wild’s personal injury lawyers argued that he was discriminated against because of his disability. The funeral home’s attorneys argued that the Compassionate Use Act that legalized medical marijuana in New Jersey provided no specific protections for employees, and so they could fire Wild for any reason. The legislation specifically stated that “nothing in this Act shall be construed to require an employer to accommodate the medical use of marijuana in any workplace.”
But here’s the thing: the wording says “use of marijuana IN any workplace.” It doesn’t say anything to suggest that an employee can discriminate against an employee for using marijuana OUTSIDE of a workplace, which is what Wild was doing. The Supreme Court ruled that Wild’s firing was unlawful.
This case might be meaningful to lawyers who practice workers comp law, because a number of New Jersey residents have already been fired following accidents with subsequent positive drug tests.
In January, Hager v. M&K Construction, 462 N.J. Super. 146 was ruled on by the New Jersey Workers’ Compensation Court, which decided that employers and workers comp insurance must reimburse injured workers who are prescribed medical marijuana. The matter was subsequently bounced to an appellate court, which agreed with the first ruling. The Supreme Court will likely take up the case, but until then the matter is unsettled.
Employers who aren’t sure what the law says need to be extremely careful to avoid high settlement lawsuits!