A federal appeals court has ruled that a New Jersey law prohibiting employer discrimination against cannabis users is to be enforced by the state, not through private lawsuits. The decision came from the 3rd U.S. Circuit Court of Appeals in Philadelphia, which dismissed a proposed class action lawsuit filed by Erick Zanetich. Zanetich sued Walmart in 2022 after his job offer was withdrawn when he failed a pre-employment drug test for marijuana.
The court's 2-1 decision stated that the Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act (CREAMMA) does not explicitly grant workers the right to sue employers for cannabis-related discrimination, unlike other types of employment discrimination laws in New Jersey.
Circuit Judge Peter Phipps, writing for the majority, said, "The far stronger inference from the legislative silence regarding a private remedy for cannabis-related employment discrimination is that the Legislature did not intend to provide one."
The ruling emphasized that enforcement of this law falls under the state's Cannabis Regulatory Commission. The commission issued guidance for employers in 2022 but has yet to take significant enforcement actions related to employment discrimination based on cannabis use.
The court noted that enforcement decisions are discretionary and may reflect the commission's priorities rather than an absence of legal authority. "Thus, the Commission’s post-enactment enforcement inaction is not particularly revealing of the pre-enactment intention of the New Jersey Legislature," stated the court.
New Jersey allows recreational marijuana use but bars employers from discriminating against employees who use cannabis off-duty unless they are impaired at work.
Zanetich initially filed his lawsuit in Gloucester County, but Walmart successfully moved it to federal court due to its headquarters being outside New Jersey. Last year, U.S. District Judge Christine O’Hern ruled similarly, stating that enforcement should be left to the state commission.
This week’s appellate ruling upheld O’Hern’s decision with Judges Peter Phipps and Kent Jordan forming the majority opinion. Circuit Judge Arianna Freeman dissented partially, suggesting that the case should have been referred back to New Jersey's Supreme Court.
Freeman wrote, "Because New Jersey’s Supreme Court has not addressed this precise issue, we must predict how it would rule... I would certify this question of law to the New Jersey Supreme Court —the 'most appropriate forum' to weigh public policy interests underlying CREAMMA’s employment protections."
Freeman also predicted that New Jersey's highest court might recognize an implied private right of action under CREAMMA for cases like Zanetich's.
