A federal appeals court panel sided with Walmart this week, ruling that although New Jersey explicitly forbids employment discrimination against marijuana users, private individuals are unable to sue employers under that law because it failed to create any specific remedies.
“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,” Judge Peter Phipps, a Trump appointee, wrote in the new opinion for the U.S. Court of Appeals for the Third Circuit.
That interpretation, Phipps continued, “is reinforced by the New Jersey Legislature’s comparative responsiveness in enacting safeguards against other forms of employment discrimination.”
The case stems from a 2022 lawsuit filed by Erick Zanetich, whom Walmart denied a job as a security guard after he tested positive for marijuana. Zanetich asserted that the drug screening policy was unlawful under New Jersey’s anti-discrimination law, which is included in the Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act (CREAMMA).
CREAMMA was passed by New Jersey lawmakers after citizens voted in 2020 to amend the state constitution to legalize marijuana.
At the district court level, Judge Christine O’Hearn, a Biden appointee, had dismissed Zanetich’s case, ruling that only a state cannabis board can enforce the law and that private individuals don’t have a right of action to sue. Zanetich appealed.
The appeals panel’s 2–1 ruling, handed down on Monday, also denied Zanetich’s request to ask the New Jersey Supreme Court to decide the issue.
Phipps wrote that sending the matter to the state’s high court “is an act of judicial discretion…and here none of the common considerations associated with the exercise of that discretion counsels strongly in favor of the certification.”
As for the importance of the case, he said the issues neither “involve questions of state constitutional law, nor are they particularly transcendental.”
“If instead of being removed to federal court, this case would have remained in the New Jersey court system,” the opinion says, “it is unlikely that the reasoning for the decision or the outcome would be different.”
Phipps was joined in the ruling by Judge Kent A. Jordan, an appointee of President George W. Bush.
A third member of the panel, Judge Arianna Freeman, a Biden appointee, issued her own opinion in which she concurred in part with the majority and dissented in part.
“At a minimum,” Freeman wrote, “I would certify this question of law to the New Jersey Supreme Court—the ‘most appropriate forum’ to weigh the public policy interests underlying CREAMMA’s employment protections.”
As to whether there’s a private cause of action under New Jersey’s law barring discrimination against marijuana users, “I predict that the New Jersey Supreme Court would discern an implied cause of action for failure to hire in violation of CREAMMA.”
Freeman agreed with the majority’s opinion, however, that the federal district court had jurisdiction to hear the case.
Zanetech’s lawyer in the case said he’s weighing whether to seek further review of the case, for example by the Third Circuit in full—what’s known as en banc review.
“Our team is currently evaluating all available options, including seeking en banc review, as we remain committed to defending the will of New Jersey voters and the essential protections they chose to establish for workers in our state,” attorney Justin Swidler told Reuters in an email.
Walmart, for its part, told the publication through a spokesperson that “we are pleased with the Third Circuit’s opinion.”
While the question of whether a private individual has a cause of action under the New Jersey law, it’s not the first time that employers have been accused of violating the worker protection. Earlier this year, for example, the state’s attorney general issued a finding of probable cause against Delaware-based Prince Telecom, which allegedly rescinded a job offer after the applicant, a medical marijuana patient, tested positive for THC.
“This employer cut off all communication, refusing to even try to work with their candidate,” Attorney General Matthew J. Platkin (D) said in a statement at the time. “Their failure to act violates the law, and we will not tolerate that.”
Sundeep Iyer, director of the AG office’s Division on Civil Rights, said at the time that the agency is committed “to ensuring that all employers are aware of their obligations under the law.”
Both the state’s general Law Against Discrimination (LAD) and the state’s specific cannabis-related laws provide certain employment protections to medical marijuana patients.
Notably, however, CREAMMA was passed after the incident involving Prince Telecom, meaning it did not apply to that dispute.
Platkin’s office has taken a comparatively bold approach to protecting employment protections for legal cannabis users in New Jersey. In 2022, the attorney general told law enforcement officials statewide that state law does not allow them to fire police officers who use cannabis off duty—a decision that led to a lawsuit from local Jersey City officials.
A police union has asked for the suit to be dismissed, calling it “pure hogwash.” In a subsequent filing, lawyer Michael Rubas accused Jersey City Mayor Steve Fulop (D) of terminating cops for their off-duty cannabis consumption so he can get attention for his campaign for governor.
Platkin revised the state guidance in 2023, generally barring screenings for marijuana in most circumstances following the state’s enactment of legalization.
In November of last year, meanwhile, a separate lawsuit from two Jersey City police officers who were fired for testing positive for marijuana similarly claimed that the city’s policy of punishing law enforcement for off-duty cannabis use is merely an effort by Fulop to “win over more conservative voters needed for his gubernatorial campaign.”
Fulop formally announced his run for governor last month, declaring his candidacy in a race to be held next year.
Back in 2019, a former Amazon warehouse employee filed suit against the corporate behemoth, alleging that he was terminated after testing positive for THC and subsequently requesting a disability accommodation for his anxiety disorder to allow him to use cannabis in accordance with state law.
Separately, in what appears to be a first for public workers in the U.S., employees in three New Jersey municipalities will have medical marijuana benefits under their healthcare plans, providing access to discounts at participating dispensaries as well as cannabis-related telehealth care.
Photo elements courtesy of rawpixel and Philip Steffan.
A federal appeals court panel sided with Walmart this week, ruling that although New Jersey explicitly forbids employment discrimination against marijuana users, private individuals are unable to sue employers under that law because it failed to create any specific remedies. “The lack of an express remedy is better understood as a deliberate choice not to Read More
