Waiver of Drug Testing Requirement Not Required Under NJ’s Medical Marijuana Law

A federal court in New Jersey held that neither the New Jersey Compassionate Use Medical Marijuana Act (CUMMA) nor the New Jersey Law Against Discrimination (NJLAD) requires an employer to waive its drug test requirement for employment.

In Cotto v. Ardagh Glass Packing, Inc., the employee argued that CUMMA’s decriminalization of medical marijuana in conjunction with NJLAD required his employer to reasonably accommodate his medical marijuana use. The court found that CUMMA, which specifically states that “Nothing in this Act shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace,” excludes employers from its scope, and thus is “essentially agnostic” as to the employee’s claims. With regard to the NJLAD, the court noted that no New Jersey state court had yet weighed in on the impact of CUMMA on that law. However, the court noted that, in other states, “most courts have concluded that the decriminalization of medical marijuana does not shield employees from adverse employment actions.” Thus, it concluded that the state courts would likely find that the NJLAD does not require employers to accommodate medical marijuana use by waiving a drug test for a federally prohibited drug.

Notably, some courts in other states have come to a different conclusion in interpreting their states’ medical marijuana laws, based on non-discrimination language contained in those statutes that was not present in the New Jersey statute. Thus, whether an employer must accommodate the use of medical marijuana is an issue of great uncertainty, depending both on the language of the applicable state statutes and courts’ interpretation of those statutes.