Authored By: William F. McDevitt, Esq.

On August 10, 2018, a federal judge sitting in Camden, New Jersey, dismissed a forklift operator’s claim that his employer violated the state’s employment discrimination laws by requiring him to submit to a drug test that he acknowledged would reveal his use of prescribed medical marijuana. In Cotto, Jr. v. Ardagh Glass Packing, Inc. et al., USDC NJ, Civ. (1:18-cv-01037), the Honorable Robert B. Kugler held that neither New Jersey’s Law Against Discrimination (LAD) nor the Compassionate Use Medical Marijuana Act (CUMMA) requires an employer to waive drug testing as an accommodation to an employee who holds a valid prescription for medical cannabis.

Following an accident, the employee was told that he would need to pass both a breathalyzer and a urine test to receive a light-duty assignment. When the employee refused, citing his medical marijuana use, he was placed on “indefinite suspension.” The federal court held that New Jersey law does not require employers to accommodate use of marijuana in the workplace nor does it require a “drug test waiver” as an accommodation for medical marijuana patients.

The holding in Cotto is specifically and expressly narrow – testing for a federally banned substance, cannabis, is not per se discriminatory. The Court does not opine about what actions the employer may take as a result of testing, though it is noted that New Jersey law provides cannabis patients with less protection than other states, including Arizona and Delaware.

Judge Kugler may have been overly kind in his assessment of state protections for qualifying patients, at least in Delaware. Under § 4905A of the Delaware Medical Marijuana Act, employers cannot discriminate against employees who test positive for marijuana unless

(1) the employer would “lose a monetary or licensing-related benefit under federal law or regulations” or

(2) the patient “used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.” However, inherent in that protection is the employer’s right to test for cannabis use. Even under the “broad protections” of Delaware law, employees do not have the ability to refuse a drug test merely because they possess a valid prescription for medical marijuana.

Pennsylvania law is no different. While § 2103(b)(1) prohibits employers from discriminating against an employee for lawfully participating in the medical marijuana program, § 2103(b)(2) states that employers are not required to accommodate a patient’s use of medical marijuana at a patient’s place of employment. Employers also are permitted to discipline an employee who is under the influence of cannabis “when the employee’s conduct falls below the standard of care normally accepted for that position.”

Pennsylvania law laudably acknowledges that cannabis might not necessarily impair an employee’s performance. If the employer perceives some difference in the job performance of a registered patient, however, the employer likely would be allowed to require a drug test, if only to correlate job performance and active marijuana use.

No state allows medical marijuana patients to work while impaired. Therefore, based on the reasoning in Cotto, every employer has a right to test an employee for cannabis (and, in states such as Delaware, conduct searches to determine whether the employee possesses marijuana at the workplace).

Currently, there are no national standards for determining whether a person is presently “marijuana impaired”; unless given immediately following ingestion, drug tests generally only confirm whether a person has used cannabis within the past several weeks. While the interpretation of cannabis drug tests is unclear, it appears to be undisputed that employees cannot refuse testing, even when lawfully participating in a state-legal medical marijuana program.

About the Author

William F. McDevitt is a partner in the Philadelphia office of national law firm Wilson Elser, where he is a member of the firm’s Cannabis Law practice. He can be reached at william.mcdevitt@wilsonelser.com.