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New Jersey job applicants denied positions because they test positive for cannabis cannot sue employers, even though state law forbids employers from refusing to hire someone because they use marijuana, a federal appeals panel ruled Monday.
In a split decision, two judges agreed that the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, the 2021 state law known as CREAMMA that legalized recreational marijuana, does prohibit employment discrimination against cannabis users.
But it doesn’t explicitly permit or spell out a legal remedy for it, wrote Judge Peter J. Phipps of the Court of Appeals for the Third Circuit. That “legislative silence” means lawsuits challenging employment actions based on cannabis use cannot stand, especially considering legislators have codified legal remedies for many other sorts of discrimination, from pregnancy to tobacco use to blood type, Phipps wrote.
“Even with that statutory framework in place and the repeated exercise of legislative willpower to protect other classes, at no time — not even after the 2020 amendments to its Constitution — has New Jersey created an express cause of action for employment discrimination based on cannabis use,” Phipps wrote.
“The lack of an express remedy is better understood as a deliberate choice not to provide a remedy rather than an oversight of an intended remedy,” he added.
Besides, he noted, the state Cannabis Regulatory Commission hasn’t taken any formal enforcement action against employers who violate the law’s employment protections.
In a dissent, Judge Arianna Julia Freeman wrote that the question is one the state Supreme Court should decide.
“I predict that the New Jersey Supreme Court would discern an implied cause of action for failure to hire in violation of CREAMMA,” Freeman wrote.
The case stems from a lawsuit Erick Zanetich filed against Walmart, which had offered him a job as a security guard at a Walmart in Swedesboro in January 2022, as long as he passed a drug test required by corporate policy, according to the ruling. Zanetich tested positive for cannabis, and Walmart rescinded its employment offer.
Zanetich sued in state Superior Court, seeking back pay, front pay, punitive damages, class-action status, and a court order overturning the corporate drug policy. Attorneys for Walmart, which is based in Arkansas, removed the case to federal court, where District Court Judge Christine P. O’Hearn granted their motion to dismiss. Zanetich appealed, and Monday’s ruling upholds the dismissal.
Attorney Justin L. Swidler, who represents Zanetich, said he’s considering seeking an en banc review of the ruling, which means the full circuit would hear the case to decide whether the three-judge panel’s decision should stand or be overturned.
“There was a good dissent, 2-to-1 decision along party lines for a political law that the voters passed overwhelmingly,” Swidler told the New Jersey Monitor.
Phipps was a 2019 Trump nominee, Freeman was a 2022 Biden nominee, and the third judge on the panel, Kent A. Jordan, was nominated to the court in 2006 by former President George W. Bush.
Swidler called the ruling “deeply disappointing” because it “nullifies” the provision in the recreational cannabis law that prohibits employers from not hiring people because of their personal marijuana use. Despite the law’s failure to explicitly say what legal recourse such job applicants have, New Jersey courts “readily recognize implied rights of action,” he said.
Swidler asked the appellate panel to certify the case for consideration by the New Jersey Supreme Court, but they refused to do so in the ruling.
“Ultimately, our state Supreme Court will get to decide this issue. I hope it’s in our case, but it may not be,” Swidler said.
Whether or not the high court eventually mulls the matter, state legislators could act now to amend the cannabis law to eliminate confusion about what legal recourse people have when employers deny them jobs because of their marijuana use, he added.
“They could fix this very easily,” Swidler said, “although we think the law is already clear now.”
Jersey City has been fighting a group of its police officers in federal court over whether the city is allowed to terminate officers who use cannabis off duty. A decision in the case has not been reached.
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“}]] State law bars employers from not hiring people because of cannabis use, but it doesn’t spell out the legal remedy, an appellate panel said. Read More
