2019Drug Testing

Written By ESR News Blog Editor Thomas Ahearn

On March 27, 2019, a New Jersey appellate court ruled in a lawsuit between a funeral home and a former employee diagnosed with cancer that employers cannot automatically fire medical marijuana users for failing a drug test since they may be protected under the state’s Law Against Discrimination (LAD).

The appellate panel of three judges found it would be “ironic” for the New Jersey Compassionate Use Medical Marijuana Act – the state law that legalized medical marijuana in 2010 – “to permit an employer’s termination of a cancer patient’s employment by discriminating without compassion.” According to the opinion:

The Compassionate Use Act neither created new employment rights nor destroyed existing employment rights; it certainly expressed no intent to alter the LAD. Just as the Compassionate Use Act imposes no burden on defendants, it negates no rights or claims available to plaintiff that emanate from the LAD.

While New Jersey’s medical marijuana law does not require employers “to accommodate the medical use of marijuana in any workplace,” the appellate court ruled that the state’s LAD may offer job protections
against wrongful termination for the more than 40,000 medical marijuana users in the state.

Plaintiff-Appellant Justin Wild was injured when the company car that he drove for a funeral home was involved in an accident that was not his fault. He was taken to a hospital where he told the staff that he had a prescription for medical marijuana and provided proof of this prescription to his employer.

However, Wild was required to take a drug test when he returned to work and was fired for violating the funeral home’s drug and alcohol policy. He sued for discrimination and lost in Superior Court, but the appellate court ruling allows the lawsuit to proceed and even be appealed to the Supreme Court.

The appellate court ruling in JUSTIN WILD, Plaintiff-Appellant, v. CARRIAGE FUNERAL HOLDINGS, INC., d/b/a FEENEY FUNERAL HOME, LLC, Defendants-Respondents, NO. A-3072-17T3, is available at www.njcourts.gov/attorneys/assets/opinions/appellate/published/a3072-17.pdf?c=vsF.

In April of 2019, ESR News reported that the drug testing positivity rate for the U.S. workforce hit a fourteen-year high in 2018 – 4.4 percent in 2018 versus 4.2 percent in 2017 – and climbed to the highest level since the 4.5 percent attained in 2004, according to an analysis released by Quest Diagnostics.

The findings of the Quest Diagnostics Drug Testing Index™ – which were taken from an analysis more than ten million workplace drug test results – revealed the U.S. workforce drug testing positivity rate is more than 25 percent higher than the thirty-year low of 3.5 percent recorded between 2010 and 2012.

Marijuana topped the list of illicit substances most commonly detected in drug testing in all workforce categories and specimen types. The rate of marijuana drug testing positivity for the U.S. workforce increased by nearly eight percent in urine testing, from 2.6 percent in 2017 to 2.8 percent in 2018.

Employment Screening Resources® (ESR) – a leading global background check provider – offers a fully integrated electronic drug test solution that takes into account laws for the medical and recreational use of marijuana by workers. To learn more, visit www.esrcheck.com/Background-Checks/Drug-Testing/.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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