The Cotto Case:  What NJ Employers Need to Know About the Compassionate Use Medical Marijuana Act (CUMMA)

Despite the Federal Controlled Substances Act prohibition of marijuana for any use or purpose, as a Schedule 1 controlled substance, it is the trend among the majority of the states, including New Jersey, to permit the use of marijuana for medical purposes. In addition, some states, such as Colorado, permit marijuana use for recreational purposes as well. Currently, New Jersey Governor Murphy is legally expanding the permissible use of marijuana in the state. These inconsistencies and variations in state and federal laws have spawned numerous legal issues and complexities. One such area that is most affected by the conflicts of law, is in the employment arena.

CUMMA and Employer Drug Testing

On August 10, 2018, in the unpublished case of Cotto v. Ardagh Glass Packing, Inc., Federal Judge Robert Kugler dismissed Plaintiff Cotto’s claim against his employer, and held that “New Jersey law does not require private employers to waive drug tests for users of medical marijuana.”

In the Cotto case, employee Cotto identified himself as disabled because of chronic back and neck injury and pain. Cotto disclosed, at the beginning of his employment, that he used several prescribed drugs to treat his pain and provided the necessary documentation to his employer. Several years into the job, Cotto was involved in an occupational forklift accident and was asked, by employer Ardagh Glass, to take a drug test as a condition of continuation of his employment. Cotto stated to the employer that he knew that he would not pass a drug test, as he takes several prescribed drugs for his disability, including medical marijuana. Ardagh Glass told Cotto that until he tested “clean” for marijuana, he would be on indefinite suspension from work. As a result of this demand, Cotto asserted that his employer discriminated against him, thus violating The New Jersey Law Against Discrimination (NJ LAD). Cotto stated that he was not provided a legally required reasonable accommodation for his disability, in that his employer would not waive the requirement that he passes the requisite drug test. He additionally asserted that in New Jersey, marijuana was decriminalized under the New Jersey Compassionate Use Medical Marijuana Act (CUMMA).

The Court noted that the use of marijuana, in the case at hand, was for treatment of a disability. The Court then analyzed the claims under the NJ LAD, looked at other relevant state laws, such as California law, and discussed several Federal laws. Most significant was that the Court noted that although medical marijuana is permitted under New Jersey State’s CUMMA, it is still a prohibited controlled substance under the Federal Controlled Substances Act, for any use and is not recognized for medicinal purposes. In the end, the District Court granted Ardagh Glass’s motion to dismiss, as the Court opined that neither NJ LAD or CUMMA would mandate that an employer waive a drug screen as a condition of employment for marijuana or any other federally-prohibited substance. In addition, the Court held that nothing in CUMMA requires an employer to permit the use of medical marijuana in the workplace.

So what does CUMMA mean for New Jersey employers and employees?

It is important for all employers to review and edit their current policies on drug free workplaces and drug testing, both before and during employment, including when reasonable suspicion arises. Employers must consider how and when they will test employees for use of controlled substances, and if marijuana would be considered in the drug screen. Some unique issues to keep in mind are marijuana use, both during traditional work hours and office space, as well as use for remote employees who may work non-traditional hours. It is worth always noting that employers should implement their policies fairly and consistently and make sure that such policies are properly drafted.

New Jersey employers must also train managers on recognition of impairment and safety lapses due to use of any controlled substances. Managers should be trained on responding to any accidents, incidents, or safety lapses due to impairments. Finally, managers must be trained on properly and thoroughly documenting all impairments, incidents, and accidents for the protection of everyone involved. Employers must have forms that are consistently used for these occasions.

Employers are wise to use caution in questioning potential employees on their use of medical marijuana, as oftentimes the use is for treatment of a disability.

Employers should be prudent and consider the liberal legal definition of “disability” and should always engage in an interactive discussion, with an employee, to find a “reasonable accommodation” for a disabled employee when the employee is “qualified.”

Finally, employers who have federal governmental contracts, must be mindful of all federal requirements.

For assistance with any of the above, please contact DEMLP / Nicole Croddick.

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Nicole Sorokolit Croddick is Counsel at Davison, Eastman, Muñoz, Lederman & Paone, P.A., where she focuses her practice on employment and labor matters. She consults companies on human resources issues and has conducted internal investigations on ethical and legal violations. She also conducts anit-harassment and other compliance trainings. Contact Nicole Croddick.