Medical Marijuana Discrimination Claim Survives Dismissal

• Author: Nhan T. Ho
• Pages: 25-26

Published in Litigation News Volume 47, Number 1, Fall 2021. © 2021 by the Ameri can Bar Association. Re produced with per mission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in any f orm or

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The district court found Sandusky’s

Bureau of Prison s challenge could not

be untethered from t he substance

of the federal convi ction and sen-

tence. The cour t dismissed his peti-

tion for lack of statu tory jurisdiction.

Sandusky appealed.

The Tenth Circuit Court of A ppeals

found that Sandusky’s habeas petition

challenged o nly the execution of his

sentence and not th e substance of his

convictions or se ntencing. The court

reasoned that because Congress could

always exclude the rider i n the future,

the Bureau of Pris ons could presum-

ably reincarce rate him and require him

to complete the remai nder of his sen-

tence. Therefore, section 2241 was the

proper avenue for re lief to enforce the

amendment. The court reversed the

lower court’s dismissal and remanded

the case to the distri ct court.

The dissent rega rded the hold-

ing form over substa nce. “I can easily

see why the dissenti ng judge argued

that this is essenti ally a collateral

attack,” oe rs Warrington S. Parker,

San Francisco, C A, cochair of the

Litigation Sectio n’s Criminal Litigation

Committee. “ The fact that invoking the

amendment can, even if temporarily,

end one’s imprisonment certainly blurs

the line betwee n challenging execution

versus conviction,” notes Parker.

As a rider to the fede ral budget,

the amendment stands on shaky

ground. “A series of ba d press can put

Congress in an e ntirely dierent mood

about this. A s much as you can, seek

a more permane nt solution,” advises

Parker. Medical ma rijuana practitio-

ners should “ follow every aspect of

California law to th e highest extent

possible. Until there are permanent

measures in pla ce to address the prac-

tical problems associated with state

legalization and federal prohibition,

strict complia nce with state medical

marijuana laws is key,” he cou nsels.

Schoen recommends a comprehen-

sive approach. “ There should be an

eort on all fro nts. Marijuana compa-

nies complying wi th state law should

be lobbying both Co ngress and the

DOJ for non-prosecution. Congress

needs to put more te eth in the rider to

make it clear that no m oney should be

spent on prosecution or incarceration.

Criminal defe nse lawyers must raise

all possible ch allenges—even the ones

that were rejected —by way of pretrial

motion,” concludes Schoen.

Medical Marijuana

Discrimination Claim

Survives Dismissal

By Nhan T. Ho, Litigation Ne ws

Contributing Editor

A decision by the New J ersey

Supreme Cour t allows employees to

pursue employment-based discrimi-

nation claims if they a re terminated

for using medic al marijuana. ABA

Litigation Secti on leaders say employ-

ers and employee s need to be aware

of the changing la ndscape of medical

marijuana laws a nd how they could

aect the workp lace.

In Wild v. Carriage Fune ral

Holdings, an employee a lleged that

his employer viola ted the New Jersey

Law Against Discr imination (LAD) by

terminating him fo r medical marijuana

use. The employe e claimed that as

part of his can cer treatment, he used

medical mar ijuana as permitted by

the New Jersey Compassionate Use

Medical Ma rijuana Act (CUA). The

employer sought d ismissal of the com-

plaint based on a s ince-amended pro-

vision of the CUA statin g that nothing

in the act requi red an employer to

accommodate medical marijuana

use in the workpla ce. The trial court

agreed and dis missed the employee’s

LAD cla im.

On appeal, th e appellate court

held that the CUA did n ot immunize

employers from com plying with LAD

obligations to emp loyees who, because

of their disabil ities, need to use medi-

cal marijuan a outside of work.

The New Jersey Su preme Court

armed, ho lding that the employee

suciently ple d a claim of disability

discriminatio n to survive the motion

to dismiss. The co urt agreed that the

CUA could be harmo nized with the

LAD. But it also o pined that certain

provisions of CUA, i ncluding the one

cited by the employer, could im pact a

plainti’s L AD claim.

“Employers in New J ersey now

have to look at medica l marijuana just

as they would look at oth er prescrip-

tion drugs,” note s John S. Austin,

cochair of the Litig ation Section’s Trial

Practice Comm ittee. “An employee’s

use of medical m arijuana is pro-

tected under th e law, just as if it were

a legally prescr ibed drug,” explains

Austin. It remai ns an open question,

however, whether an employee who

needs to use mari juana to control a

disability at wor k would be safe from

termination if the e mployee could

show that marijua na usage did not

aect his or he r ability to perform the

required work, o bserves Loren Kieve,

cochair of the Sec tion’s Judicial Intern

Opportunity Program.

“Marijuana’s impact on employ-

ment law is rapidly d eveloping,” states

Austin. “Thi rty-three states now allow

for the use of medic al marijuana, and

the remaining seve nteen states allow

the use of canna bidiol (CBD) prod-

ucts,” he ela borates. These laws are

constantly cha nging, and the provision

at issue in Wild no long er exists. After

certiorari was g ranted in that case,

the New Jersey leg islature enacted

the Jake Honig Compassionate Use

Medical Ca nnabis Act, which amende d

the CUA and augme nted workplace

protections for medical marijuana

users. New Je rsey employers are

now explicitly prohib ited from tak-

ing an “adverse em ployment action”

against employees or applicants solely

because they are a r egistered mari-

juana user.

Addressing the relationship between

medical marijuana legislation and anti-

discriminatio n laws, “courts are all over

the place, with leg islatures scrambling

to come up with a solution ,” comments

Kieve. In Califor nia, a bill was intro-

duced in Februa ry 2020 that “would

make medical c annabis users a pro-

tected class in C alifornia,” Kieve notes.

But not all states h ave been as wel-

coming to marijua na for medical use.

In North Caro lina, for example, “ther e

has been pen ding legislation to allow

the medical us e of marijuana, specif‌i-

cally THC, b ut those bills have yet to be

passed by the legi slature,” Austin says.

A medical mar ijuana user must

satisfy several co nditions, and the

employer can still t ake adverse actions

in some situations , such as to comply

with federal laws or if th e employee

uses marijuan a at the workplace. “As a

matter of legisla tive policy, the states

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