Many companies go into a panic when they aren’t reading the law but rather listen to news reports or to what non-lawyers opine about a law.
This article explains how the Third Circuit Rejects Claims by New Jersey Applicant Who Failed Cannabis Test In Zanetich v. Walmart Stores East Inc., the Third Circuit Court of Appeals held that a job applicant could not bring a claim against Walmart under New Jersey’s Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) after his job offer was rescinded for failing a drug test for cannabis. This decision clarifies the limits of employment protections under CREAMMA and provides guidance to employers navigating cannabis-related employment policies in New Jersey.
The plaintiff applied for an asset protection position at a Walmart facility in Swedesboro, New Jersey. After receiving a conditional job offer, he took a drug test pursuant to Walmart’s corporate policy. When the test returned positive for cannabis, Walmart rescinded the job offer. The plaintiff sued, claiming that Walmart’s actions violated CREAMMA and New Jersey’s public policy. Both claims were dismissed by the district court, a decision the Third Circuit affirmed.
CREAMMA’s Employment Protections Enacted in 2021, CREAMMA legalized recreational cannabis use in New Jersey and introduced employment protections related to cannabis consumption.
Specifically, the law prohibits employers from:
Refusing to hire or discriminating against an individual based on their use or non-use of cannabis.
Taking adverse employment actions against employees solely based on a positive cannabis drug test.
However, the law expressly allows employers to maintain drug-free workplace policies, including prohibiting cannabis use during work hours or on company premises. This ambiguity about how far the act’s protections extend became central to the case.
The Court’s Decision
The Third Circuit’s ruling centered on two key issues:
No Private Right of Action under CREAMMA: The court held that CREAMMA does not explicitly or implicitly create a private cause of action for job applicants like the plaintiff. The court concluded that the act neither confers a special benefit on job applicants nor includes language indicating legislative intent to create such a remedy.
No Violation of New Jersey Public Policy: The plaintiff argued that New Jersey’s public policy exception to at-will employment should apply to his case. However, the court determined that this exception protects employees — not applicants — from adverse actions that contravene clear public policy. As a result, Walmart’s decision did not constitute a violation.
Implications for Employers
This decision provides several takeaways for employers navigating cannabis use and employment policies in New Jersey:
Clarity on Job Applicant Protections: Employers are not obligated under CREAMMA to hire applicants who test positive for cannabis, as the law’s employment protections do not explicitly extend to prospective employees.
Drug-Free Workplace Policies Remain Enforceable: Employers can maintain zero-tolerance drug policies, provided these policies are equally applied and do not disproportionately impact protected characteristics under other laws.
Documenting Impairment is Key: While this case involved a pre-employment drug test, employers addressing cannabis use by current employees should follow Cannabis Regulatory Commission guidance to combine drug test results with evidence of on-the-job impairment before taking adverse actions.
Final Takeaway
Employers should review their hiring and drug testing practices in light of statutes in which they are operating.
James P. Randisi, President of Randisi & Associates, Inc., has been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs since 1999. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. To learn more about the rights of employees who test positive for marijuana, Mr. Randisi can be contacted by phone at 410.494.0232 or Email: info@randisiandassociates.com or the website at Randisiandassociates.com
