Blunt Reality: NJ cannabis users cannot sue over rescinded job offers

Think you can sue your employer for not hiring you because you tested positive for cannabis? Think again. The Third Circuit just made it clear that New Jersey’s recreational marijuana law does not provide job applicants with a private cause of action.

The plaintiff, who applied for a job with a major retailer only to have his offer rescinded after failing a drug screen, argued that the rescinding of his job offer violated the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, also known as the CREAMMA. The CREAMMA prohibits employers from refusing to hire someone based on their cannabis use.

The Third Circuit applied a multi-factor test to determine whether the CREAMMA provided for a private right of action.

1. Conferral of a Special Benefit on a Particular Class: The court found that CREAMMA’s employment protection provision does not confer a special benefit on any particular class because it applies broadly to all individuals, whether they use cannabis or not.
2. Legislative Intent to Provide a Remedy: The court found no legislative history indicating an intention to create a private remedy. The absence of an express provision for a private cause of action suggested that the New Jersey Legislature did not intend to create one.
3. Advancing the Principal Purposes of CREAMMA: The court found that implying a private remedy for job applicants who fail cannabis drug tests does not advance CREAMMA’s purposes and could undermine cannabis regulation by protecting users of illegal cannabis.

Ultimately, the Third Circuit Court of Appeals concluded that CREAMMA does not imply a private cause of action for any applicant who has a job offer rescinded after testing positive for marijuana.

Takeaways for Employers

1. Job Applicants Have No Private Cause of Action: Employers can breathe a sigh of relief knowing that CREAMMA does not provide a private cause of action for job applicants who fail cannabis drug tests.
2. Current employees may have grounds to sue: The Third Circuit left open the possibility that current employees fired for marijuana use could pursue a wrongful termination claim (as a public policy exception to at-will employment under Pierce v. Ortho Pharmaceutical Corp.)
3. Regulatory Compliance: While CREAMMA doesn’t give job applicants a private right to sue, it’s still crucial to comply with its provisions. The Cannabis Regulatory Commission can oversee and enforce CREAMMA’s rules.
4. Other laws, like the NJLAD, may apply: Individuals using medical cannabis could pursue disability discrimination claims if they perceive that their disability, rather than cannabis use, motivated an adverse employment action.
5. Policy Updates: Regularly review and update your employment policies to align with state laws and clearly communicate your stance on cannabis use to avoid potential legal headaches.