Employers Begin to Face Legal Complaints for Cannabis Use Discrimination

Laws that limit how employers may legally test for cannabis use are one of the latest trends in employment laws. We recently covered new or pending laws in California, Washington, D.C., and Philadelphia. Employers are beginning to face legal action for accusations of non-compliance with cannabis laws. A complaint initially filed in the Superior Court of New Jersey, Gloucester County, claims that Walmart violated one such law.

What New Jersey’s Cannabis Testing Law Says

The state of New Jersey is one location with restrictions. The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) 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, and an 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 P.L.2021, c.16 (C.24:6I-31 et al.).”

CREAMMA does allow employers to test for cannabis if there is “reasonable suspicion” that an employee may be under the influence. The New Jersey Cannabis Regulatory Commission recently released guidance for employers on what “reasonable suspicion” means to help employers maintain compliance.

Walmart Accused of Violations

The complaint filed against Walmart stems from an employment decision in early 2022. According to the complaint, Erick Zanetich applied for an Asset Protection position with the company in January 2022. Walmart offered Zanetich the job in February under the condition that he pass a drug test. After he submitted his test, the testing facility notified him that he tested positive for cannabis and that they would notify Walmart. Not long after, Walmart Human Resources notified Zanetich that they had rescinded his job. The deciding factor was the positive cannabis drug test.

Zanetich filed a complaint against Walmart on August 5, 2022. He is attempting to obtain a class action that includes candidates from February 22, 2021, and later, who were:

• Denied employment by Walmart in the state of New Jersey for a failed pre-employment cannabis drug test Subject to any adverse employment action by Walmart in the state of New Jersey because they tested positive for cannabis

The allegations filed in court include that:

• Zanetich and class members were subjected to adverse employment action solely because of testing positive for cannabis.
• Walmart’s policies that result in adverse action based on testing positive for cannabis violate CREAMMA.

Walmart Fights Back

In September 2022 Walmart removed the case to federal court.  On October 7, 2022, Walmart attorneys filed a motion to dismiss in the United States District Court of New Jersey. According to the motion, among other things, Walmart argues “although the CREAMMA states that, ‘[n]o employer shall refuse to hire or employ any person . . . because that person does or does not smoke, vape, aerosolize, or otherwise use cannabis items,’ there is no express private right of action by which an employee can enforce this provision by way of a civil lawsuit.”. In other words, employees have no grounds for enforcement through civil lawsuits.

Instead, Walmart argues that the law states that the Cannabis Regulatory Commission is the sole regulatory authority. They conclude that since the law doesn’t include an express private right of action, the court should dismiss the complaint. The case is pending, and the court has not yet ruled on the motion to dismiss.

While there is yet to be a final decision, it may serve as a good reminder for employers to stay on top of the developments in new laws. Employers may want to review new legislation in their areas with their legal team to align their screening process.