The Best of Intentions: State Law Protections for Employee Cannabis Use May Not Protect Them After All | Bradley Arant Boult Cummings LLP

And it’s hard to rely on my own good senses
When I miss so much that requires attention

As was discussed in a post earlier this week, the changing landscape of the cannabis industry is keeping employers on their toes nationwide. As more and more states expand the legalization of cannabis products, we are also seeing a trend in the cannabis statutes for protections for workers who use them. If cannabis is legal in your state and an employee tests positive for it, can you still terminate based on your drug-free workplace policy? A new decision out of the Third Circuit Court of Appeals, Zanetich v. Wal-Mart Stores East, et al., suggests that courts may not necessarily enforce worker protections in state statutes that do not expressly set out a remedy for the worker to seek in court. 

Facts and Statutory Language Matters

In 2021, New Jersey enacted the Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act (CREAMMA), which both legalized cannabis and set out a number of related regulations, including the prohibition of employment discrimination based on cannabis use. That provision states: 

No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items…

It goes on to protect employees from adverse employment actions based solely on a positive cannabis drug test:

[A]n employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid from engaging in conduct permitted under [CREAMMA].

In 2022, following CREAMMA’s enactment, Erick Zanetich applied for an asset protection job at a Wal-Mart facility in Swedesboro, New Jersey. He was offered the job, contingent on a negative drug test. Wal-Mart rescinded Zanetich’s job offer, however, after he tested positive for cannabis.

Zanetich subsequently filed a putative class action against Wal-Mart in New Jersey state court, in part under the CREAMMA anti-discrimination clause. Wal-Mart removed the case to federal court and moved to dismiss that claim on the grounds that individuals lacked a private right of action under CREAMMA. After the district court granted Wal-Mart’s motion to dismiss, Zanetich appealed, and the Third Circuit affirmed the dismissal.  Notably, the Third Circuit concluded that CREAMMA did not expressly state (or even imply) a private right of action (i.e., an individual citizen’s ability to file a lawsuit against an employer who violates that provision), and the court would not infer one to allow Zanetich’s claim to proceed.

Takeaway 

While this decision does not mean you can ignore state laws with cannabis-use protection for employees, it does indicate that such statutory provisions lacking a private right of action may not have the remedy for workers that legislators advertise. It remains to be seen whether states will enact new (or amend previously existing) cannabis protections to expressly include a private right of action.