The New Jersey Law Legalizing Recreational Marijuana Use Does Not Permit Workers To Sue Their Employers For Job Discrimination

Clifford Geiger
Clifford Geiger

In January 2022, Eric Zanetich applied for a job in Walmart’s Asset Protection Department.  He was offered the job subject to submitting to and passing a drug test.  Zanetich alleged that Walmart’s Drug & Alcohol Policy stated, “any applicant or associate who tests positive for illegal drug use may be ineligible for employment.”  Zanetich took a drug test.  He tested positive for marijuana, and the job offer was rescinded.

Zanetich sued and asserted two claims:  (1) violation of the New Jersey Cannabis Regulatory Enforcement, Assistance, and Marketplace Modernization Act (“CREAMMA”); and (2) failure to hire and/or termination in violation of New Jersey public policy.  Zanetich v. Wal-Mart Stores East, Inc. et al, No. 1:2022cv05387 (D.N.J. 2023).

Walmart moved to dismiss the complaint, arguing there is no explicit or implied private cause of action under CREAMMA, and New Jersey common law does not provide a cause of action for a failure to hire in violation of public policy.

Effective January 1, 2021, recreational marijuana use became legal in New Jersey.  Soon thereafter, legislation was passed, including CREAMMA, to regulate the market.  CREAMMA limits an employer’s ability to take adverse action against employees based on legal marijuana use.  The law provides, “no employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items, and an employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid from engaging in” the legal use of cannabis.  Discipline for actual impairment at work is still permitted.

Zanetich and Walmart agreed there is no explicit private right of action in CREAMMA, so the court examined whether there was an implied private right of action.  Courts generally agree that a statute can create an implied right to a private cause of action, but as this case demonstrates, that can be a difficult argument to win.  The court ruled the legislature did not intend to imply a private cause of action in CREAMMA’s employment provision, because:  (1) CREAMMA designated a Cannabis Regulatory Commission (“CRC”) with the power to regulate, investigate, and prosecute all violations of the statute; and (2) other employment statutes adopted by the New Jersey legislature, such as the New Jersey Law Against Discrimination and the Conscientious Employee Protection Act, explicitly provide for a private cause of action.  In essence, the court said the legislature intended the CRC to handle all aspects of enforcement, and when the legislature wanted to create a private cause of action, there were other employment statutes that demonstrated it knew how to do so.

The court distinguished cases from Delaware, Arizona, Rhode Island, and Pennsylvania, which recognized an implied cause of action for employment discrimination under medical marijuana laws, because none of those states had regimes with an entity like CRC, which was tasked with enforcing all aspects of CREAMMA.

The court quickly dismissed the common law failure to hire claim as it was inconsistent with state and federal court precedent which consistently held New Jersey’s wrongful discharge law does not extend to a failure to hire.

The court acknowledged that its decision appeared to leave Zanetich without a remedy but declared it was up to the CRC or New Jersey’s legislature to address that issue.

Adult recreational marijuana use will be legal in Maryland on July 1, 2023, but Maryland’s law does not provide specific employment protections for an individual who has cannabinoid metabolites in their system because of legal marijuana use.  That provision was deleted from the version of the bill that became law. 

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