According to New Jersey Federal Court, Employees Cannot Sue Under New Jersey Cannabis Law

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In May 2023, a federal judge for the US District Court for the District of New Jersey ruled that the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”) does not provide for a private right of action. Specifically, US District Judge Christine P. O’Hearn determined in Zanetich v. Wal-Mart Stores East, Inc., et al that employees cannot sue their employers for alleged violations of CREAMMA.

In short, the court decided that only the New Jersey Cannabis Regulatory Commission (the “CRC”) has the authority to enforce CREAMMA, leaving employees without the ability to bring individual suits under the law.

This ruling could have significant implications for employer liability under CREAMMA.

CREAMMA Explained

As we previously reported, CREAMMA provides anti-discrimination protections for employees who use cannabis recreationally and imposes strenuous requirements on New Jersey employers who conduct drug testing for the presence of cannabis in an individual’s system. By law, employers are allowed to ban the use or possession of cannabis in the workplace, but they are forbidden from taking an adverse action against an employee solely because the employee tests positive for cannabis use or the employer is informed of an employee’s cannabis use outside of the workplace.

The Case at Hand

Plaintiff Erick Zanetich applied for a job at one of Defendant Walmart’s New Jersey locations. After interviewing for the position, Zanetich received a conditional job offer with a start date, subject to passing a drug test. After testing positive for cannabis, Walmart withdrew Zanetich’s conditional job offer. Subsequently, Zanetich filed suit in federal court asserting violations of CREAMMA.

In response, Walmart filed a motion to dismiss the complaint. Judge O’Hearn’s opinion deciding the motion noted that CREAMMA does not explicitly provide for a private cause of action, nor does the statute create an implied private cause of action. In so finding, the Court relied on the lack of any explicit cause of action in the statute and the fact that the New Jersey Legislature created the CRC to handle all aspects of the enforcement of CREAMMA and the prosecution of any violations. In sum, the court found no evidence that an implied private right of action exists under CREAMMA due to the broad authority given to the CRC, as well as the legislative scheme and underlying purposes of law.

In other words… Judge O’Hearn found that only the CRC has the authority to enforce violations of CREAMMA and granted Walmart’s motion to dismiss the complaint.

The Impact of the Court’s Decision

The court recognized that its decision essentially rendered the employment protections passed under CREAMMA “meaningless.”

While this ruling may be used by employers as a shield to liability for alleged CREAMMA violations, it is worth noting that Zanetich has appealed this decision and Judge O’Hearn in her opinion expressly invited the New Jersey Legislature, the CRC, or the Supreme Court of New Jersey to either amend CREAMMA to explicitly provide a private right of action or issue a framework or regulations regarding enforcement of CREAMMA’s employment protections.  

With this in mind, employers should still ensure compliance with CREAMMA at all times and stay apprised of any new developments in this area.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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