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A NJ Transit employee is suing for discrimination after getting suspended from his job for hisn participation in the state's medicinal marijuana program.

(Patti Sapone/The Star-Ledger)

In what may be the first legal test of the state’s medical marijuana law in the workplace, a 57-year-old Newark man with end stage renal failure is suing NJ Transit, his employer, for suspending him and sending him into rehab because he is a registered patient with New Jersey’s medical marijuana program.

Charlie Davis, a former procurement clerk at the transit agency, says the nerves in his legs are severely damaged, causing him pain and making it difficult to sleep. Using marijuana, he says, relieves some of that discomfort, according to the lawsuit.

In December, Davis was “bumped” from his job by a more senior employee, according to the lawsuit filed last month in state Superior Court in Essex County. When he sought an available job as a “block operator” a field position, he was sent for a physical exam that required a drug test.

He told NJ Transit’s medical director he used medicinal marijuana, and offered to apply for “non-safety sensitive position” if his treatment was a problem, according to the lawsuit.

The suit says the medical director Patrice Verner, “told him that he had no choice but to take the drug test and if it came back positive, he would be sent to drug rehabilitation.”

Davis tested positive for pot on Dec. 28 and was sent to a drug treatment program. Since then, he has been out of work and not receiving a paycheck.

“Instead of working to accommodate its disabled employee, NJ Transit treated him like a drug addict,” according to his attorney, Sarah Fern Meil of Milford, who said that to her knowledge this was the first lawsuit challenging an employee’s right to work and be enrolled in the medical marijuana program.

“Charlie Davis is a courageous person,” Meil said. “Despite suffering from a debilitating illness, he’s trying his best to remain a productive member of society. The medicinal marijuana prescribed by his doctor helped ease his terrible pain and allowed him to lead a more normal life. But NJ Transit has forced Charlie to choose between his health and his job.”

“NJ Transit’s actions violate both common sense and the law against discrimination designed to protect workers and disabilities like Charlie,” she added.

An NJ Transit spokesman, John Durso, said the drug-testing requirements were intended to ensure the safety of customers.

“All employees applying to and occupying safety-sensitive positions at NJ Transit are required to submit to, and pass pre-employment and random drug tests in accordance with Federal Railroad Administration and Federal Transit Administration guidelines,” Durso said.

Citing the regulation, he said the U.S Department of Transportation “does not authorize ‘medical marijuana’ under a state law to be a valid medical explanation for a transportation employee’s positive drug test result."

“It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana,” he added.

Recent history shows that when the right of a worker's use of medicinal marijuana clashes with the employer’s right to enforce drug testing requirements, courts in other states have sided with employers.

“Many employers already have policies in place governing employees' use of alcohol and illegal drugs and providing for drug testing. Changes in state marijuana laws do not diminish the efficacy of those policies, for the most part,” according to website of BakerHostetler’s, a large national firm that specializes in employment law.

In 2012, the U.S. Court of Appeals for the Sixth Circuit sided with WalMart, which had fired a worker with cancer who had registered with the state medical marijuana program, according to an article on the firm’s website.

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