On December 9, 2024, the U.S. Court of Appeals for the Third Circuit held that New Jersey’s Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”) does not provide workers with a private right of action for employment discrimination based on marijuana consumption. In so doing, the split 2-1 panel affirmed the District Court of New Jersey’s dismissal of a Wal-Mart applicant’s putative class action lawsuit in Zanetich v. Walmart Stores East Inc. et al. The named plaintiff alleged that Wal-Mart rescinded his employment offer after he tested positive for cannabis. He filed suit asserting two claims: (1) Wal-Mart’s violation of CREAMMA, and (2) termination and/or failure to hire in violation of New Jersey public policy.
New Jersey legalized marijuana use and possession by persons aged 21 or older in November 2020. Shortly thereafter, in February 2021, the state legislature enacted CREAMMA, which regulates the consumption of cannabis within the state. Specifically, CREAMMA outlaws employment discrimination based on a person’s use or non-use of cannabis, and protects employees from adverse employment actions based solely on a positive cannabis drug test.
Even so, the Third Circuit determined that the plaintiff in Zanetich failed to show that the legislature intended to confer a private right of action to individuals who fall victim to the discrimination prohibited by CREAMMA, citing the absence of any language creating or suggesting a private remedy. “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,” Circuit Judge Peter Phipps wrote.
As a case of first impression not yet explored by the New Jersey Supreme Court, the plaintiff’s counsel urged the federal appellate court to remand the matter and give the New Jersey Supreme Court an opportunity to determinatively interpret CREAMMA for an implied cause of action. The Third Circuit denied the plaintiff’s request, predicting that the New Jersey Supreme Court would not have found the statute to include such a right because “(i) CREAMMA does not specially benefit job applicants who fail cannabis drug tests; (ii) there was not a legislative intent to imply a remedy for job applicants who fail cannabis drug tests; and (iii) implying a remedy for job applicants who fail cannabis drug tests is inconsistent with CREAMMA’s stated purposes.”
Adding an extra shield to employers’ potential liability, the Third Circuit further rejected the viability of a cannabis-using job applicant’s suit for failure-to-hire in violation of public policy, which is one of only a few exceptions to the at-will employment doctrine in New Jersey.
To date, New Jersey’s Cannabis Regulatory Commission has not yet taken any enforcement action against employers who violate CREAMMA’s employment protections. While the recent decision takes some of the “bite” out of CREAMMA, the law’s prohibition against employment discrimination remains. Nonetheless, the Third Circuit’s ruling is certainly a huge win for employers who want to avoid a wave of class action lawsuits while maintaining a drug-free workplace.
