Below is a brief summary of a New Jersey court case, with excerpts taken from PDFNJ’s quarterly update written by Stephen E. Trimboli, Esq., of Trimboli & Prusinowski, LLC. Mr. Trimboli represents business owners, non-profits and public bodies in labor and employment law matters and was the recipient of the 2019 PDFNJ Founder’s Award. Quarterly updates are sent to members of Don’t Drugs Work in NJ, PDFNJ’s free drug-free workplace program.

NJ Court Case on Cannabis Use Identifies the Need for More Clarification from the State for Employers

A recent court decision by the Federal District Court for the District of New Jersey has determined that individual employees cannot sue to enforce the employment provisions of Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). This legislation permits the sale of marijuana in New Jersey to adults 21 or older and provides certain protections for employees (or potential employees) for their off-duty use of marijuana. Erick Zanetich, the plaintiff in the case, applied for a job in Walmart’s Asset Protection Department.  Walmart offered him the job subject to a successful completion of a pre-employment drug test. When the applicant’s test result came back positive for marijuana use, Walmart rescinded the job offer.  Zanetich sued Walmart, arguing that Walmart’s decision to take back the job offer was a violation of the discrimination provisions written into cannabis legislation passed by the state.

Walmart filed a motion to dismiss the case, arguing that CREAMMA did not create a private cause of action for individual employees or applicants.  In a sense, Walmart was arguing the decision not to hire based on a positive drug test result did not violate any specific requirements for employers that were written into CREAMMA. The Federal District Court for the District of New Jersey ruled in favor of Walmart and dismissed the case. In the conclusion written by the court, the court noted that if the State Legislature wants there to be “a private cause of action” providing an avenue for employees to address possible discrimination by employers, then the legislators should go back and amend the legislation. In Mr. Trimboli’s update, he identifies one way the court noted how legislators could go about doing this: the legislature could amend CREAMMA, giving the New Jersey Cannabis Regulatory Commission (CRC) the power to “adopt regulations” and have the CRC provide “much-needed guidance to employers.”

PDFNJ will continue to monitor this situation and keep business leaders informed should any action be undertaken by the State Legislature, the Supreme Court of New Jersey, or the CRC. The case serves as just one example of the many challenges New Jersey employers face now that adult use of marijuana is legal. PDFNJ’s next drug-free workplace webinar, Marijuana in the Workplace: The Challenge of Impairment is scheduled for 11 a.m. Tuesday, Sept. 19.