By Ty Hyderally Esq., and Kenny Delgado

A federal appellate Court recently ruled against a Plaintiff’s private right to sue a prospective employer.

In its decision, the Court in Erick Zanetich v. Walmart Stores East, INC., d/b/a Sam’s East Inc., d/b/a Sam’s Club Fulfillment Center determined that a potential employee who tested positive for marijuana and had his employment rescinded because of that positive test could not sue the potential employer. This decision is based on the language within the New Jersey Cannabis Regulatory, Enforcement and Marketplace Modernization Act (“CREAMMA” or CREAMM Act”).  According to the Court, New Jersey’s CREAMM Act does not provide a personal right of action against prospective employers in a 2-1 majority decision. What does this mean and how does this decision affect the rights of marijuana users in New Jersey?

History of the NJ CREAMM Act

In 2020, New Jersey voters voted overwhelmingly to amend its state constitution to legalize recreational marijuana use. Governor Phil Murphy signed the New Jersey Cannabis Regulatory, Enforcement and Marketplace Modernization Act in 2021. The NJ CREAMMA was written to include protections for marijuana users, guidance and legal power for local governments, and directives for business owners who had to change policy to comply with the act. Among the many portions of the Act was a provision that prevented marijuana usage or lack of marijuana usage from being a reason that a company could terminate employees, or a reason for employers to deny employment. It was on this provision that the Court made its decision.

Private Causes of Action

In discrimination protection legislation there is usually included a civil cause of action which provides remedy for those that are seeking the protection of a law. In some cases, such as the NJ LAD which governs most discrimination cases in the state, the remedy and legal recourse is included within the statute and have been extended through case law. The availability of these remedies is the basis for employment law cases and why it is possible to sue employers under the relevant acts. Civil causes of action have also been found if a Court believes that the lawmakers intended a path for a citizen to recuperate losses from a defendant even if a statute fails to include explicit language of a remedy. This presumed remedy is determined by examining the legislative intent lawmakers through the examination of the statute and the history of the creation of the statute.

The Court’s Decision

The question of the NJ CREAMMA and its civil remedy is the basis for the decision on appeal handed down in Erick Zanetich v. Walmart Stores East, INC., d/b/a Sam’s East Inc., d/b/a Sam’s Club Fulfillment Center. In this appeal, the plaintiff sought that the court remand the summary judgment decision handed down by the third Circuit Court in favor of the defendant. The Plaintiff argues that the Third Circuit Court was incorrect in determining that the NJ CREAMMA lacked language designed to create a civil cause of action, therefore there was no recourse for remedy available to the Plaintiff.

The Court decided that the language of the NJ CREAMMA did not create a class that could seek remedy through the courts. The Appeals’ Court stated, “CREAMMA’s first employment protection prohibits adverse employment actions because a person ‘does or does not smoke, vape, aerosolize or otherwise use cannabis items.’” This language, according to the Court, did not create a class that was to be protected but rather indicated that there was a generalized protection for anyone who does and does not use marijuana. This failure to create a class means that there is no special benefit that can be granted to someone who loses an employment opportunity for having used marijuana. Further the Court reasoned that since the CREAMMA intended to protect legal users of recreational marijuana, extending protection to anyone that tests positive for marijuana usage would extend protections to those that use the substance illegally. This protection would be beyond the intend of CREAMMA and therefore the Court must stick to the legislative intent of the Act.

Marijuana in the Workplace

The changing tides of marijuana legislature and judicial action reflect the changing attitudes towards use of the formally banned substance, and it has not been a smooth transition. Here the Court, finds within the law permitting recreational use what can either be a legislative oversight or an intentional legal device that seems at its face incongruent with the spirit of the NJ CREAMMA. While it is now clear that a prospective employee is not protected from losing a job opportunity due to marijuana usage, there are protections that have been created within the same law for those that are already employed and use marijuana recreationally. Policies regarding the use of marijuana during work hours are determined by the employer and all employees should be aware of those policies.

Changes in the law are hard to keep up and if you believe that you have experienced discrimination in your work place for any reason not just using a legal substance please seek out an experienced employment attorney.

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