U.S. District Judge Robert Kugler U.S. District Judge Robert Kugler/Photo by Carmen Natale

An employer’s refusal to waive its drug test requirement for a forklift driver using medical marijuana was not discriminatory, a federal judge in Camden has ruled.

New Jersey’s Compassionate Use Medical Marijuana Act shields qualifying users from criminal prosecution and certain civil penalties, but it does not obligate employers to allow employees to use medical marijuana, U.S. District Judge Robert Kugler said Aug. 10 in granting a motion by defendant Ardagh Glass Packing Inc. to dismiss the plaintiff’s disability discrimination suit.

Plaintiff Daniel Cotto Jr., who began working at Ardagh in 2011, claimed the company knew he used Percocet, Gabapentin and medical marijuana for back and neck pain.

According to the decision, following a minor workplace accident, Cotto was ordered to take breath and urine tests, but he declined. He claimed that the company’s refusal to let him return to work without being tested constitutes disability discrimination, and that legalization of medical marijuana compels his employer to provide him an accommodation under the Law Against Discrimination.

Kugler said that undue prejudice toward treatment for a disability can be deemed discrimination against the disability itself, but he found that such was not the case in this instance. The judge said it was “understandable” that Ardagh took a more permissive stance toward Percocet, which is regarded as having high potential for abuse, but which remains legal, than to marijuana, which is still illegal under federal law.

Kugler said the case concerns conduct resulting from treatment, not the disability itself, Kugler said.

Courts in California, Colorado, Michigan, New Mexico and Washington State have held that decriminalization of medical marijuana does not shield employees from adverse employment actions, Kugler noted.

The lawyer for Cotto relied on a dissenting opinion on Ross v. Ragingwire Telecom, a 2008 California Supreme Court ruling in a case that Kugler said is nearly identical to Cotto’s. There, Justice Joyce Kennard said that “California’s voters, when they enacted [California's] Compassionate Use Act, surely never intended that persons who availed themselves of its provisions would disqualify themselves from employment.” But Kugler said he was more persuaded by the majority position, which said nothing in the history or text of that state’s medical marijuana law suggests that voters intended the measure to address the rights and obligations of employers and employees.

No court has directly addressed the interplay between CUMMA and the New Jersey Law Against Discrimination, according to Kugler, but he said the New Jersey judiciary would likely conclude that the LAD does not require an employer to accommodate medical marijuana usage with a drug test waiver. The state’s courts have generally found employment drug testing to be permissible in the context of private employment, Kugler noted.

Discrimination claims by Cotto turn on whether he can compel Ardagh to waive its requirement that he pass a drug test, and CUMMA does not require Ardagh to do so, Kugler said.

“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,” Kugler ruled.

Cotto began working at Ardagh’s Bridgeton facility, which manufactures glass containers for food, beverages and spirits, in 2011, according to the decision. He claims that, when he was hired, he informed his employer that he was taking Percocet, Gabapentin and medical marijuana for a prior back injury, and presented medical documentation stating that it was safe for him to do so.

On Nov. 1, 2016, Cotto was injured when he hit his head on the roof of a forklift. A doctor placed him on light duty, but the company told him no light duty work was available, and that he had to pass a breathalyzer and urine test in order to return to work, the decision said.

Cotto’s lawyer, Kevin Costello of Costello & Mains in Mount Laurel, declined to comment on the ruling.

Paul Erian of DLA Piper in Short Hills, who represented Ardagh Glass, did not return a call about the case.

In February 2017, U.S. District Judge Claire Cecchi dismissed a similar case by a Robert Half Corp. employee in the medical marijuana program who was fired after failing a drug test. In that case, Barrett v. Robert Half, Cecchi ruled that the plaintiff’s notice to his employer that he was in the medical marijuana program due to back pain did not constitute a request for accommodation of a disability.