New Jersey’s recently passed recreational cannabis law, the Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act, or CREAMMA, provides specific workplace protections for employees who lawfully use cannabis. One of its most important aspects is that employers are not permitted to take any adverse employment action against an employee based solely upon them having cannabinoid metabolites in their bodily fluids. But the law notably lacked the explicit right of employees to take private action against companies for doing so, and this was made painfully clear by a recent decision by a New Jersey Federal Judge.

This past May, U.S. District Judge Christine P. O’Hearn handed down a ruling in Zanetich v. Walmart Stores East, Inc., et al. that said that employees who have had adverse employment actions taken against them do not have the right to pursue claims against the employer on their own: instead, all action must be taken by the New Jersey Cannabis Regulatory Commission, or NJ-CRC. She noted in her decision that this made the protections passed under CREAMMA “meaningless,” and invited the state’s legislature, the NJ-CRC, or the Supreme Court of New Jersey to revisit the language used in the law or to explicitly create regulations under which such private actions could be pursued.

The case that came before Judge O’Hearn was filed by Erick Zenetich. Mr. Zanetich had applied for a job at a Walmart location in New Jersey and was given a job offer and start date subject to passing a drug test. Though he was not under the influence at the time of his test, the results were positive for cannabis and the job offer was withdrawn. He subsequently filed a lawsuit in federal court against Walmart for violations of the CREAMM Act, and Walmart filed a motion to dismiss his complaint.

In her examination of the law, Judge O’Hearn found that CREAMMA lacks both explicit and implicit provisions for employees to pursue private action against an employer in violation of the law. Rather, it indicates that the NJ-CRC was created by the state legislature specifically to handle all aspects of the law’s enforcement and prosecution of all violations. The authority given to the NJ-CRC effectively prevents such actions from being pursued, and as a result she ruled in favor of Walmart and the case was dismissed.

This decision, though disappointing, clarifies the guidance and regulations that need to be put in place to fulfill CREAMMA’s underlying purpose. Mr. Zanetich is appealing the ruling, and though employers may have a respite from liability for alleged CREAMMA violations, it is anticipated that it will be a temporary one and that the law will swiftly be amended to allow employees to pursue actions against those who violate their rights.

If you have suffered a negative employment action and would like more information regarding the options available to you, contact our employment discrimination law firm today to set up a time for us to talk.