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Employers can fire medical marijuana patients who fail drug tests, court rules

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Private employers in New Jersey can still require medical marijuana patients to take mandatory drug tests, a federal court has ruled.

According to court records, Daniel Cotto Jr. sued his employer, Ardagh Glass, on the basis that it was violating the New Jersey Law Against Discrimination by making him pass a drug test before returning to work after suffering an injury.

Judge Robert Kugler of the U.S. District Court in Camden disagreed, and dismissed the suit Friday upon Ardagh’s request.

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

The case documents said Cotto began his tenure as a forklift driver at Ardagh in February 2011, at which time he informed his employer of the drugs he was prescribed, which included medical marijuana due to a 2007 neck and back injury.

Cotto sustained an injury while driving a forklift in November 2016 and was thereby instructed by a doctor to go on “light duty” work, court papers said. His employer, however, required that he pass a breathalyzer and urine test before returning to work.

After formal termination in August 2017, Cotto filed suit in Superior Court in Cumberland County. The case was then transferred to federal court in Camden upon Ardagh’s request.

"[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," Kugler wrote.

Quoting CUMMA, Kugler then wrote the law does not require an employer “to accommodate the medical use of marijuana in any workplace."

He noted Ardagh was within its rights as an employer to refuse to waive a test for a federally prohibited narcotic, adding New Jersey is an at-will employment state that allows employers to fire an employee for “good reason, bad reason, or no reason at all."

Cotto was represented by Marisa Hermanovich of Costello & Mains’ Cherry Hill office; Ardagh by Paul Erian of Short Hills-based DLA Piper.

Neither attorney returned requests for comment by press time.

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Gabrielle Saulsbery

Gabrielle Saulsbery

Albany, N.Y. native Gabrielle Saulsbery is a staff writer for NJBIZ and the newest thing in New Jersey. You can contact her at gsaulsbery@njbiz.com.

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