Garnering national headlines, a case out of New Jersey appears to suggest that employers may be able to fire employees who use medical marijuana because the employee is unable to pass a drug test.
However, employers in Pennsylvania should be careful to avoid falling into a trap that would be created by an overly broad reading of the case of Cotto v. Ardagh Glass Packing, No. 18-1037 (D.N.J., Aug. 10, 2018); Cotto applies a law that is quite different from Pennsylvania’s.
Cotto involved an employee who used medical marijuana and had in fact told his employer this when he was hired. However, several years later, the employee was injured when he hit his head on the roof of his forklift. The employer told him he had to pass a drug test prior to returning to work. The employee brought suit under New Jersey’s Law Against Discrimination alleging a failure to accommodate the disability that required the use of medical marijuana by failing to provide an accommodation in the form of a waiver of the requirement of a negative drug test. However, the Court dismissed the employee’s claims, finding that nothing in New Jersey’s Compassionate Use of Medical Marijuana Act or Law Against Discrimination required the employer to provide such an accommodation.
However, Pennsylvania employers should not rely upon Cotto, and this case may provide a false sense of security for employers in other states as well.
First, the Court in Cotto found that New Jersey’s Compassionate Use of Medical Marijuana Act specifically excludes employers from its scope. Pennsylvania’s Medical Marijuana Act, while not requiring employers to accommodate the use of medical marijuana at work, does include a provision that protects employees who qualify for medical marijuana use from discrimination in employment. Given the current technology involved in drug testing, it will be very difficult for an employer to establish, unless there is evidence beyond the drug test, whether the positive drug test is due to use at work or outside of work, the latter likely being protected by Pennsylvania law.
Second, while no Pennsylvania court has addressed the issue, the decision in Cotto reached a different conclusion than some other states, which have found that employers must engage in the interactive process with an employee who requests such an accommodation, or have found a direct cause of action under state medical marijuana laws.
As a result, employers in Pennsylvania should not rely upon Cotto and are well advised to contact counsel prior to taking action with employees, or even potential employees, who use medical marijuana outside of work or have a positive drug test.
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.