A funeral director licensed to work in New Jersey has filed an employment lawsuit, alleging he was fired for her personal use of marijuana to help treat symptoms of cancer.
According to NJ.com, the 39-year-old professional wrote in his complaint that he’d been prescribed medicinal marijuana after being diagnosed with cancer approximately two years ago. Two years before that, in 2013, he was hired to work as a funeral director, where he logged approximately 30 hours each week. By all accounts, he did the job well and had good reviews for customer satisfaction. But then, in the spring of 2015, his physician found a tumor on his spine. They removed it. Then, they found another one. That one was in too dangerous a location to be surgically removed. Other forms of treatment, including chemotherapy and radiation were ordered. To help ease some of those symptoms, including nausea and loss of appetite, doctors prescribed patient moderate doses of marijuana.
Plaintiff insists he never used the drug during working hours, using the substance only in the evenings. Further, he insists he was never high at work. However, one day in May 2016, plaintiff was on-the-job, driving his vehicle when he was involved in car accident. At the hospital emergency room, he revealed that he had a prescription for medical marijuana and he tested positive for the drug. However, he insisted he was not under the influence of the drug at the time of the collision.
His employers, however, said that when proof of this prescription was revealed to his employers, they requested a subsequent drug test. When it inevitably came back positive, he was fired for violation of the center’s zero tolerance policy on drugs and alcohol use by employees. The policy requires workers to disclose any medications they may be taking that could impact their job performance.
Plaintiff said his actions didn’t fall under this umbrella because his marijuana use never conflicted with his ability to perform his job duties and therefore, he didn’t violate company policy. Neither his superiors nor clients had ever before the day of the crash made any indication that they were displeased with his work or had any suspicion he may have been under the influence.
After the collision, plaintiff alleges his former bosses smeared him by telling the local county funeral directors’ association that he was terminated for a drug addiction and that he was intoxicated at the time of the crash. Such statements, plaintiff asserts, are patently false and have done harm to his reputation and ability to secure future employment. He says his former boss violated sate law against disability discrimination.
He is seeking damages for lost wages, lost pension, health insurance costs, wrongful termination and emotional distress.
As our marijuana lawyers know, it’s not unusual for employers to pull this kind of maneuver to avoid paying workers’ compensation fees for an on-the-job injury, which it likely could do if it could successfully prove the worker was under the influence at the time of the crash. But of course, the presence of marijuana in one’s system isn’t necessarily indicative of impairment because the drug remains in one’s body for days or even weeks after it’s ingested. Regular users could have a high amount of THC in their bloodstream, and yet not be impaired whatsoever.
So while plaintiff may have a strong claim for workers’ compensation, he will probably have a tougher time on the employment claim. That’s because employers are given a wide amount of discretion when it comes to these matters – even when marijuana is legal at the state-level – because the drug is still illegal under federal law.
The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 714-937-2050.
Funeral home director claims he was fired for using medical marijuana, Feb. 10, 2017, By Anthony G. Attrino, NJ Advance Media
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Exploring Public Use of Marijuana in Denver, Feb. 2, 2017, L.A. Marijuana Lawyer Blog