State News : New Jersey

Daniel Cotto worked as a forklift operator at Ardagh Glass in Bridgeton, N.J.  On November 1, 2016, Cotto hit his head on the roof of a forklift at work.  He was advised to see Premier Orthopedics in Vineland, N.J. for a medical examination, and a Premier Orthopedics doctor placed Cotto on light duty work with a follow-up appointment set for December 8, 2016.  The Safety Department asked Cotto to submit to a breathalyzer and urine test in order to return to work.  Cotto explained that he was taking prescription medications, including medical marijuana under the New Jersey Compassionate Use of Medical Marijuana Act (“CUMMA”).  He was also taking prescription Percocet and advised the company that he could not pass any urine or drug test.

Cotto alleged that he was told he could no longer work at Ardagh Glass because he could not operate machinery while on narcotics.  Cotto argued that he revealed his prescription medications to the company when he was hired.  His doctor had given him a note stating he could operate machinery while using these drugs.  The company advised that it was not concerned about his use of Percocet but was concerned about his use of marijuana.

Cotto was not fired but he was placed on an indefinite leave.  He was not permitted to return to work until he could pass a drug test.  Cotto’s doctor wrote that Cotto had lifting restrictions because of medical conditions, but Cotto maintained that he could perform the essential functions of the job.  He sought a “reasonable accommodation,” specifically asking that the company waive any requirement that he pass a drug test for marijuana.

Eventually Cotto filed a law suit asserting disability discrimination and failure to make reasonable accommodations.  Ardagh Glass moved to dismiss the complaint because CUMMA does not mandate employer waiver of a drug test.

Initially the federal court agreed that Cotto plead enough to satisfy coverage under the New Jersey Law Against Discrimination.  His back and neck pain met the standard of the NJLAD.  The Court also noted that Cotto appeared to be qualified to perform the essential functions of the job, having done it for five years.  Ardagh, however, maintained that Cotto could not show that he could operate machinery while using marijuana.  The company noted that use of Percocet was not illegal, but marijuana use was illegal under federal law.

The Court next reviewed CUMMA and said, “The New Jersey legislature found that ‘modern medical research has discovered a beneficial use for marijuana in treating or alleviating the pain or other symptoms associated with certain debilitating medical conditions.’”  The Court added that CUMMA provides an affirmative defense to patients who are properly registered under the statute and subsequently arrested and charged with possession of marijuana.  The Court commented that the decriminalization of medical marijuana does not shield employees from adverse employment actions.

The Court’s decision today is a narrow one, as it must be for the narrow issue presented by Plaintiff’s complaint.  Plaintiff’s discrimination claims turn entirely on the question of whether he can compel Ardagh Glass to waive its requirement that he pass a drug test.  It is plain that CUMMA does not require Ardagh Glass to do so.  We therefore find that Plaintiff has failed to show that he could perform the ‘essential functions’ of the job he seeks to perform.  Ardagh Glass is within its rights to refuse to waive a drug test for federally-prohibited narcotics.

Regarding Cotto’s argument that other injured employees with restrictions had been permitted to work light-duty positions, the Court said that Cotto failed to show that similarly situated employees asked for the specific accommodation he asked for, namely a drug test waiver.

The case can be found at Cotto v. Ardagh Glass Packing, Inc., No. 18-1037 (D.N.J. August 10, 2018).  It is the first decision of its kind in New Jersey on the issue of whether an employer must make a reasonable accommodation of waiving a post-injury drug test for an employee covered under CUMMA.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.