By Melanie M. Ghaw, Esq. and Rachel H. Khedouri, Esq.
In a case of first impression, a New Jersey District Court has determined there is no implied private cause of action under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”), the statute legalizing recreational cannabis use for adults. In other words, only the state’s Cannabis Regulatory Commission – and not private citizens – has the authority to sue under the statute to enforce CREAMMA. As a reminder, CREAMMA prohibits employers from testing for cannabis except under certain circumstances or taking adverse employment actions based on an applicant’s or employee’s off-duty cannabis use. For additional information regarding CREAMMA, please refer to our February 2021 and September 2022 eAlerts, available HERE and HERE.
In Zanetich v. Wal-Mart Stores East, Inc., et al., Case No. 1:22-cv-05387 (D.N.J. May 25, 2023), the Plaintiff applied for a job in a New Jersey-based Walmart’s Asset Protection Department. After interviewing with Walmart, the Plaintiff received a conditional job offer subject to taking and passing a drug test in accordance with Walmart’s Drug & Alcohol Policy.
Shortly thereafter, Walmart informed Plaintiff that his job offer was rescinded because he had tested positive for cannabis. The Plaintiff filed a class action asserting, in part, that Walmart violated CREAMMA by rescinding his job offer. U.S. District Judge Christine P. O’Hearn agreed with the Defendants’ argument that individuals do not have the authority to sue under CREAMMA and dismissed the litigation.
While Judge O’Hearn determined there is no evidence the Legislature intended to create a private cause of action under the statute, she also noted that the express language of the statute is “less than helpful,” wherein it explicitly prohibits employers from taking certain adverse actions but does not state how or by whom the provision would be enforced, and what, if any, remedies would be available. Judge O’Hearn further noted that, while the court’s decision effectively leaves Plaintiff without a remedy, it is up to lawmakers, not judges, to fix the statutory scheme.
Although the court’s decision may provide some relief for employers, it is likely to be temporary as the Plaintiff has already filed a Notice of Appeal for consideration of this issue at a higher judicial level and Judge O’Hearn expressly invited the Legislature to consider amending the statute to provide a remedy for aggrieved individuals. Accordingly, employers should continue to proceed with caution when taking any adverse action based on an applicant’s or employee’s recreational cannabis use.
NFC’s attorneys can assist employers in navigating the evolving laws regarding recreational cannabis use. If you need assistance drafting or reviewing a drug-free workplace policy or drug testing protocol, or have any questions on how best to address any workplace cannabis issues, please contact the NFC Attorney with whom you typically work or call us at 973.665.9100.