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A New Jersey appeals court has reopened the lawsuit of a funeral director who was fired after his employer found out he was using medical marijuana.
Justin Wild’s suit claimed he was unlawfully discriminated against for using medical marijuana as part of his cancer treatment as permitted under the state’s Compassionate Use Medical Marijuana Act. A trial judge held Wild’s Law Against Discrimination suit could not go forward because nothing in the Compassionate Use Act requires an employer to accommodate a medical marijuana user.
But on appeal, Judges Clarkson Fisher Jr., Richard Hoffman and Karen Suter disagreed, holding that “because the Compassionate Use Act declared it should not be construed to ‘require’ an accommodation does not mean such a requirement might not be imposed by other legislation.”
Fisher, writing for the panel, said the Compassionate Use Act’s refusal to provide an employment accommodation for a user “does not mean that the Compassionate Use Act has immunized employers from obligations already imposed elsewhere. It would be ironic indeed if the Compassionate Use Act limited the Law Against Discrimination to permit an employer’s termination of a cancer patient’s employment by discriminating without compassion.”
Wild claims he was wrongly dismissed from his job at the Feeney Funeral Home in Ridgewood after his bosses found out he was using medical marijuana at night, after work. He says his employer found out he was in the medical marijuana program after he was in a car accident and he told hospital personnel.
Jamison Mark of Deutsch Atkins in Hackensack represents Wild. The funeral home is represented by Steven Luckner and Michael Riccobono of Ogletree, Deakins, Nash, Smoak & Stewart in Morristown.
Mark, Luckner and Riccobono did not respond to a request for comment.
Wild was involved in a car crash in May 2016 while in the course of his employment. He was determined to not be at fault in the collision, the suit claims. But when he was taken to the emergency room, he disclosed his use of medical marijuana to hospital staff.
Because the accident was considered work-related, his medical marijuana use was disclosed to his employer. Wild was ordered to take a drug test and was fired for violating a company policy requiring employees to tell their supervisor if they are using any medication that may adversely affect their ability to safely perform their duties.
Wild first filed his lawsuit in state court in Bergen County in February 2017. Carriage Funeral Holdings, doing business as Feeney Funeral Holdings, a Delaware corporation with a principal place of business in Houston, removed the case to federal court in Newark on diversity grounds. On Nov. 2, 2017, Wild filed an amended complaint, naming two managers at the funeral home, David Feeney and Ginny Sanzo, as defendants. Wild claimed that his managers defamed him by telling other area funeral directors that he was a drug addict.
Since Feeney and Sanzo are New Jersey residents, grounds for diversity jurisdiction no longer existed, and the case was sent back to state court in November 2017.
Superior Court Judge Charles Powers, in Bergen County Superior Court, dismissed Wild’s complaint in February 2018.
In rejecting that ruling, the appeals court ruled the defendants wrongly suggested the Compassionate Use Act somehow immunizes actions otherwise potentially violative of the state Law Against Discrimination, Fisher wrote.
A handful of rulings around the country have come out in favor of workers in employment disputes over the use of medical marijuana.
In February, a federal judge in Arizona ruled thatWalmart’s firing of a worker was unjustified based on the company’s idea that marijuana metabolites in her urine meant she was impaired at work. The plaintiff, Carol Whitmire, smokes marijuana before bed to help with shoulder pain and arthritis, and as a sleep aid. Senior U.S. District Judge James Teilborg wrote that Walmart failed to prove that Whitmire was impaired at work, and he allowed the discrimination claim to proceed under the state’s Medical Marijuana Act. Teilborg did reject related complaints made under Arizona’s civil rights and employment protection laws.
And in October 2018, a federal judge in Connecticut ruled that a nursing home violated an anti-discrimination provision of that state’s medical marijuana law when it withdrew a job offer after applicant Katelin Noffsinger tested positive for marijuana, which she uses to treat post-traumatic stress disorder. U.S. District Judge Jeffrey Meyer rejected Bride Brook Health & Rehabilitation Center’s claim that, as a federal contractor, it was barred from hiring someone who uses marijuana outside the workplace.
But rulings that are unfriendly to employment rights of medical marijuana users have been more common. In one such case, a federal judge in Camden, New Jersey, held that an employer was not required to accommodate forklift operator Daniel Cotto Jr.’s medical marijuana use by waiving the employee’s positive drug test result, despite the employee’s possession of a doctor’s note stating that he could operate machinery while using his prescription.
And in February 2017, a federal judge in Newark granted a motion by Robert Half Corp. to dismiss a wrongful termination suit by a medical marijuana user for failure to state a claim on which relief can be granted. Plaintiff Thomas Barrett, an accountant who participated in the medical marijuana program because he suffers from severe back pain after an auto accident, was fired after failing a drug test. But the judge ruled the plaintiff’s notice to his employer that he was in the medical marijuana program due to back pain did not constitute a request for accommodation of a disability.