Cole Schotz P.C: Recent Case Highlights Risks for New Jersey Employers When Terminating Employees for Cannabis Use

On April 25, 2023, in Henson v. Daimler Truck North America LLC, Civil Case No. 22-cv-6479 (RBK/MJS), United States District Judge Robert B. Kugler ruled that the wrongful termination suit filed by an employee who was fired after testing positive for cannabis may proceed. Judge Kugler, however, determined that the New Jersey Conscientious Employee Protection Act (“CEPA”) whistleblower claim should be dismissed due to the lack of a causal nexus between the employee’s communications regarding New Jersey drug testing law and his firing.

Plaintiff Robert Henson (“Henson”) was employed by Daimler Truck North America LLC (“Daimler”) when he was involved in an accident while operating a company vehicle in November 2021. Daimler’s company policy required that a drug test be administered after workplace accidents. Henson informed his manager that he had used cannabis weeks before the incident, so he anticipated that he would test positive for cannabis in his system. The test did, in fact, come back positive. Henson was immediately suspended without pay.

While he was suspended, Henson learned about the then-recently enacted Cannabis Regulatory, Enforcement, Assistance, and Marketplace Modernization Act (“CREAMMA” or the “Act”) in New Jersey. As we previously reported, CREAMMA provides various employment protections for employees who use cannabis recreationally and imposes strenuous requirements on New Jersey employers who conduct drug testing for the presence of cannabis in an individual’s system. While CREAMMA allows employers to drug test employees after a workplace accident, the Act does not allow employers to take adverse employment actions against employees based solely on a positive drug test.

After discovering that Daimler may have violated CREAMMA, Henson made multiple attempts to inform his manager about the employment protections under the Act and voice concerns regarding the legality of his suspension. About two weeks after the positive test result, Henson was fired and subsequently brought suit against Daimler for violation of CEPA and wrongful discharge in violation of public policy. In response, Daimler filed a motion to dismiss the Complaint for failure to state a claim.

In support of its motion to dismiss Henson’s claim for wrongful discharge, Daimler argued that: (1) it was permitted to rely on the positive drug test, which took place after the workplace accident, in taking the adverse actions against Henson because the physical evaluation requirement to determine an employee’s present state of intoxication was (and currently still is) temporarily waived by the New Jersey Cannabis Regulatory Commission; and (2) Henson’s termination was necessary to maintain a drug-free workplace, which Daimler was required to enforce as a federal contractor under the federal Drug-Free Workplace Act of 1988 (the “Drug-Free Workplace Act”).

In denying Daimler’s motion to dismiss Henson’s claim for wrongful discharge, Judge Kugler determined that the occurrence of the workplace accident is irrelevant if, as Henson alleged, the positive test result was the only reason for his suspension and subsequent termination. Further, Judge Kugler found that Daimler presented no evidence that Henson was using drugs in the workplace and noted that the Drug-Free Workplace Act does not require federal contractors to conduct workplace drug testing, let alone suspend or terminate employees who fail a drug test.  For these reasons, Daimler’s motion to dismiss Henson’s wrongful termination claim was denied.

As noted above, Henson also alleged protection as a whistleblower under CEPA as he lodged concerns regarding the legality of his suspension under CREAMMA to his manager prior to his termination. Judge Kugler found that Henson satisfied two of the three elements required for a CEPA whistleblower claim: Henson reasonably believed that Daimler violated the law and an adverse action was taken against him (i.e., suspension and termination). Judge Kugler, however, ruled that Henson’s Complaint did not establish the required causal link between the whistleblowing activity and the adverse actions.

In sum, the law regarding CREAMMA’s employment protections is rapidly developing. Employers should stay up-to-date with this evolving area of law and update their policies and practices accordingly. Employers are also well advised to consult counsel before making any cannabis-related employment decisions.