Iowa employers should pay attention to a recent ruling from a New Jersey Appellate Court , Wild v. Carriage Funeral Holdings, Inc. 3/27/2019. The Wild opinion is the most recent case addressing the rights of employees who use medical marijuana. Although the Court was addressing the question under New Jersey law, an Iowa court may it find it persuasive when the issue comes up here, because of important similarities between the Iowa and New Jersey medical marijuana laws.
The New Jersey Compassionate Use Medical Marijuana Act, like the Iowa medical marijuana law, allows a person to use medical marijuana to treat certain debilitating medical conditions. Like the Iowa law, the New Jersey law requires a physician to certify a person has a medical condition for which medical marijuana use is allowed. Most important, similar to the Iowa statute, the New Jersey medical marijuana law provides no employment protections for medical marijuana users. In fact, the New Jersey law states that “nothing” in the statute requires an employer to accommodate a medical marijuana user.
The plaintiff in the New Jersey case was employed as a funeral director for a chain of funeral homes. In 2015 he was diagnosed with cancer. His physician provided a certification that allowed the plaintiff to use medical marijuana under the Compassionate Use Act.
In May 2016, the plaintiff was involved in a car accident while driving for his job. He was taken to the emergency room by ambulance, where he told the treating physician he was a medical marijuana user. The opinion does not say why the plaintiff disclosed this information, but presumably it was because New Jersey law allows employers to conduct post-accident drug testing if there is a reasonable suspicion drug or alcohol use was a cause of the accident. But, in this case, the ER physician did not order a drug test because he did not believe the plaintiff was impaired at the time of the accident.
After the plaintiff was released from the ER, his father told the employer that plaintiff was a licensed medical marijuana user. Again, it’s not entirely clear from the ruling why this disclosure occurred, but it was probably because the employee expected to be drug tested when he returned to work. Indeed, that is exactly what the employer required.
So, the plaintiff went to an urgent care clinic the same evening to be tested. The clinic doctor told plaintiff the drug test would be positive because of marijuana as well as prescription pain killers; the doctor also expressed that testing under these circumstances was illegal, and he refused to draw blood for the test. But, for some reason, the clinic still administered a urine and breathalyzer test. No one told the plaintiff the results of these tests, and there was no evidence any test results were given to the employer.
Several days later, the plaintiff’s boss told him “corporate” was unable to handle his marijuana use, and he was being terminated because “they found drugs in your system.” However, in the official termination letter from the corporate office, it stated plaintiff was terminated not because of his drug use, but because he failed to comply with a company policy that required employees to disclose use of medication that may adversely affect their ability to perform assigned job duties safely.
The plaintiff sued under the New Jersey law that prohibits discrimination on the basis of disability. He claimed the funeral home could not lawfully terminate his employment, despite any drug test results, because his cancer was a qualifying disability, and he was legally treating the cancer in accordance with his physician’s directions and in compliance with the Compassionate Use Act. The trial court dismissed the lawsuit because the Compassionate Use Act does not contain employment-related protections for licensed users of medical marijuana, and, in accepting the plaintiff’s own allegations as true, the termination occurred because of a positive drug test and in violation of the funeral home’s drug use policy.
The Court of Appeals reversed the trial court, and reinstated the lawsuit. The Court was not persuaded the lack of express employment protections in the law carried the day. The language of the statute states, “[n]othing in this act shall be construed to require…an employer to accommodate the medical use of marijuana in any workplace.” What that means, the Court reasoned, is that the Compassionate Use Act “intended to cause no impact on existing employment rights…it neither created new employment rights nor destroyed existing employment rights.” Just as the law imposes no burden on employers, the Court concluded,“it negates no rights or claims available to plaintiff that emanate from the [Law against Discrimination].”
In short, the medical marijuana law did not change the existing law that bars disability discrimination against employees. The plaintiff alleged he suffered from cancer, and for that reason, used medical marijuana. The Court concluded the plaintiff should have the opportunity to prove he was fired because of his cancer, and that the employer’s stated reliance on his drug use was a pretext for disability discrimination.
In another post on medical marijuana, we warned that this very situation could occur under Iowa’s medical marijuana law. Even though a confirmed test for marijuana does not itself qualify as a disability, the underlying medical condition for which medical marijuana is used very well might. The employer’s problem in Wild is that it appeared to act too fast based upon partial information. Employers should move slowly and seek advice from counsel when they know an employee with a positive marijuana test has certification to use medical marijuana.