Seton Hall Law Professor Says Worker's Lawyer Faces Uphill Battle

NEWARK, N.J. (CBSNewYork/AP) – A NJ TRANSIT clerk who is a registered medical marijuana patient is suing after the agency suspended him for failing a drug test.

The suit filed last month by 57-year-old Charlie Davis, suffering from end-stage renal failure, may be the first of its kind in New Jersey, where medical marijuana has been legally available since 2012.

Davis said the drug helps ease pain in his nerve-damaged legs and makes it easier to sleep.

Davis was sent for a drug test in December and told the medical director that he’s a medical marijuana patient.

NJ TRANSIT spokesman John Durso told The Star-Ledger that even though the drug is legal for certain patients in the state, it’s prohibited under Federal Railroad Administration and Federal Transit Administration guidelines.

Seton Hall law professor Charles Sullivan, who specializes in employment law, said Davis’ lawyer has some ways to fight the case.

“I think she’s got two arguments and that is the American with Disabilities Act allows employers to discriminate against people for the current use of illegal drugs,” Sullivan told WCBS 880’s Levon Putney.

Medical marijuana is legal in New Jersey but illegal on the federal level.

Sullivan said Davis’ lawyer can also argue he’s protected by a state law which protects workers from being punished if following the law.

But if the case is judged by federal law, Sullivan said Davis may be out of luck.

“If it means illegal under federal law, then it remains an illegal drug,” Sullivan told Putney. “So that’s one of the issues.”

The law professor said Davis’ lawyer faces an uphill battle.

“There have been five or six cases in different states, have gone against the plaintiffs,” said Sullivan. “The employers have always won.”

Courts have sided with employers in similar cases elsewhere.

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