In Cotto v. Ardagh Glass Packing, CV-18-1037 (D.N.J., August 10, 2018), the District of New Jersey held that neither the New Jersey Law Against Discrimination nor the New Jersey Compassionate Use Medical Marijuana Act required the employer to waive its mandatory drug testing for a medical marijuana user.

Daniel Cotto, Jr. was hit in the head on a forklift and was subsequently asked to take a drug test as a condition of continued employment.  In response, Cotto told his employer that he could not pass the drug test because he was taking medically-prescribed drugs, including medical marijuana.  The employer advised that the company could not allow him to continue to work there unless he tested negative for marijuana and placed him on an indefinite suspension as a consequence of not satisfying this condition of employment.

Cotto subsequently filed a lawsuit, alleging disability discrimination under the New Jersey Law Against Discrimination, and alleging that the New Jersey Law Against Discrimination and the New Jersey Compassionate Use Medical Marijuana Act require the employer to make an accommodation for him.   The employer subsequently filed a motion to dismiss the lawsuit, which the District of New Jersey granted.

In so doing, the District of New Jersey found that nothing in the express language of the New Jersey Compassionate Use Medical Marijuana Act (which protects medical marijuana users from criminal prosecution) shields employees from adverse employment actions.  In addition, the District of New Jersey predicted that the New Jersey State Judiciary would find that the New Jersey Law Against Discrimination  “does not require an employer to accommodate an employee’s use of medical marijuana with a drug test waiver.”  The Court did, however, note that its decision was narrow based “entirely on the question of whether he [Cotto] can compel Ardagh Glass [the employer] to waive its requirement that he pass a drug test.”