Medical marijuana user’s boss can drug test him, court says

Submitted by New Jersey Drug Crime Lawyer, Jeffrey Hark

A New Jersey business does not have to waive its requirement for mandatory drug testing for a worker who uses medical marijuana, a federal court has ruled.

Daniel Cotto Jr. of Bridgeton had sued Ardagh Glass citing the New Jersey Law Against Discrimination after the company wouldn’t allow him to return to his job unless he submitted to breathalyzer and urine screenings.

Ardagh asked that Cotto’s suit be dismissed, an action which was granted by Judge Robert B. Kugler sitting in U.S. District Court in Camden.

“New Jersey law does not require private employers to waive drug tests for users of medical marijuana,” Kugler wrote.

The judge also noted “unless expressly provided for by statue, most courts have concluded that the decriminalization of medical marijuana does not shield employees from adverse employment actions.”

Cotto said in his suit he had worked for Ardagh in Bridgeton as a forklift operator since February 2011.

When he was hired, he told officials there he was taking Percocet, Gabapentin and using medical marijuana — all prescribed by a doctor — to treat pain from a 2007 injury he had suffered, Cotto’s suit said.

There was no indication in court documents whether Cotto was required to submit to a drug test at that time.

In early November 2016, according to his suit, he injured himself by hitting his head on the roof of a forklift while working at Ardagh.

He says after a doctor’s visit he was told by an Ardagh representative he couldn’t return unless he passed a drug test.

Cotto claimed he was told by a company human resources official his medical marijuana use was a “problem.”

In August 2017, Cotto was “formally” terminated, his suit says. Cotto filed suit in Superior Court in Cumberland County in September 2017, but the case was later transferred to federal court in Camden at Ardagh’s request.

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Kugler said in his ruling that Cotto was not claiming that Ardagh was discriminating against him based on his disability, but “discriminated against him by refusing to accommodate his use of medical marijuana by waiving a drug test.”

The judge wrote “(Cotto) claims that the decriminalization of medical marijuana under the New Jersey Compassionate Use Medical Marijuana Act together with the New Jersey Law Against Discrimination compels his employer to provide an accommodation for him, which the court infers can only mean a request that his employer waive the requirement that (Cotto) pass a drug test.”

Ardagh argued the state’s medical marijuana act “does not mandate employer acceptance — or, more particularly, to waive a drug test — of an employee’s use of a substance that is illegal under federal law.”

While New Jersey’s medical marijuana act protects those prescribed the drug from legal penalties, Kugler quoted the law which says it does not “require … an employer to accommodate the medical use of marijuana in any workplace.”

Kugler says he believes other courts would also reach the conclusion that the Law Against Discrimination “does not require an employer to accommodate an employee’s use of medical marijuana with a drug test waiver.”

“Ardagh Glass is within its rights to refuse to waive a drug test for federally-prohibited narcotics,” Kugler wrote.

Kugler also noted New Jersey is an “at-will” employment state meaning “an employer may fire an employee for good reason, bad reason, or no reason at all.”

Attorneys for Cotto and Ardagh didn’t immediately return email requests for comment.

Originally published here by nj.com