Law360

In Cotto v. Ardagh Glass Packing Inc.,[1] the United States District Court for the District of New Jersey dismissed an employee’s disability discrimination, failure to accommodate and retaliation claims, holding that neither the New Jersey Law Against Discrimination nor the New Jersey Compassionate Use Medical Marijuana Act required the employer to waive its drug testing requirements. This is the first case assessing the employment rights of medical marijuana users in the state.

Authors: Melissa M. Ferrara Jill S. Vorobiev

The plaintiff, Daniel Cotto Jr., began working for Ardagh as a forklift operator in 2011. According to his complaint, at the time of his hiring, Cotto informed Ardagh that he took two prescription pain medications and medical marijuana for a previously sustained neck and back injury. Cotto claimed that he presented medical documentation demonstrating that it was safe for him to perform his duties while taking these prescriptions and Ardagh hired him with full knowledge of his use of these medications.

The instant matter arose out of Cotto injuring himself at work in November 2016. After the injury, a doctor permitted Cotto to return to work on light duty. In order to return in any capacity, however, Ardagh required that Cotto pass a breathalyzer and urine drug test. Cotto objected, presenting his medical marijuana card and marijuana prescription and noting he provided medical documentation when he was hired establishing his ability to perform his duties while on his medications. Ardagh refused to relax its drug testing requirements, and placed Cotto on an “indefinite suspension” until he passed a drug test.

Cotto then filed suit in the Superior Court of New Jersey, alleging violations of the LAD and CUMMA. Cotto claimed that an unspecific medical condition required lifting restrictions, and that he, therefore, met the LAD’s definition of disabled. He also claimed that he was capable of performing the essential functions of his forklift position with an unidentified “reasonable accommodation.” The court ultimately interpreted this “accommodation” to be the waiver of Ardagh’s drug testing requirements.

Ardagh removed the matter to federal court based on the parties’ diversity. Ardagh then moved to dismiss Cotto’s complaint, arguing that applicable New Jersey law, and CUMMA specifically, does not mandate an employer’s acceptance of medical marijuana use or require it to waive drug testing for substances that are illegal under federal law. The court agreed.

Regarding his disability discrimination claim, the court determined that Cotto sufficiently pleaded that he was disabled and physically qualified for his forklift position, but could not perform the essential functions of his position — namely, passing a drug test — and, thus, had failed to meet his prima facie burden.

The court’s analysis turned on the distinction between a disability and the treatment of a disability. The court noted that “undue prejudice” toward a treatment (like the use of a wheelchair) can constitute discrimination against the disability itself. However, that was not the case here. Specifically, Cotto did not plead any facts to indicate that Ardagh was in any way hostile towards his underlying conditions. In fact, Ardagh employed Cotto without issue for five years. Instead, Ardagh’s concerns and testing requirements were based on the consequences of Cotto’s treatment and its fear that Cotto could not operate machinery.

Thus, the court reasoned that the disability discrimination claim distilled to a single issue — whether Ardagh could condition Cotto’s employment on his passing a drug test, which would effectively make passage an “essential function” of Cotto’s job.

Although 31 states, including New Jersey, have determined that marijuana has medicinal value and have extended some legal protections to permit its use in that context, the federal government’s position on marijuana remains unchanged. Under the federal Controlled Substances Act, marijuana is classified as a Schedule I substance, meaning it has no recognized medical purpose and has a high potential for abuse. Moreover, pursuant to established precedents, the legal protections against disability discrimination do not extend to criminal conduct, even when the disability is causally connected to the conduct, and marijuana remains illegal under federal law.

As for New Jersey’s medical marijuana law, CUMMA decriminalizes medical marijuana usage and removes the threat of civil sanctions. It also specifically states that nothing in the law “shall be construed to require ... an employer to accommodate the medical use of marijuana in any workplace.”[2] Despite this statutory directive, the court noted that this language neither supported nor defeated Cotto’s claims, but instead was “agnostic” on the issue of accommodating medical marijuana usage.

Rather than rely on the CUMMA’s terms, the court pointed to other jurisdictions, including California, Washington, the Sixth Circuit and the District of Colorado, that have concluded that their medical marijuana laws did not shield employees from adverse employment actions absent express statutory language providing those protections. The court predicted that the New Jersey judiciary would reach the same result, given the wide acceptance of drug testing in private employment and the absence of any contrary directive in CUMMA or the LAD. Accordingly, the court held Ardagh was “within its rights to refuse to waive a drug test for federally-prohibited narcotics,” and dismissed Cotto’s disability discrimination claim.

Since neither CUMMA nor the LAD excused Cotto’s obligation to pass a drug test, the court further held that Cotto could not maintain his failure to accommodate claim. Finally, because refusing a drug test is not protected activity, the court also dismissed Cotto’s retaliation claim.

The Cotto decision is unpublished and, therefore, is not controlling precedent. However, it does provide persuasive authority that private employers in New Jersey are not obligated to waive or relax their drug testing requirements for medical marijuana users. At least for now. New Jersey’s governor and Legislature have indicated an intention to expand marijuana use protections, making it especially important for employers to stay tuned for changes in the law. Moreover, multistate employers must be aware of the specific laws in all of the states in which they operate — and if those laws provide for workplace protections for marijuana users — before taking adverse employment actions or refusing to accommodate such use.