New Jersey Job Applicants Who Test Positive for Marijuana Have No Legal Recourse, Court Rules
A federal appeals court has ruled that New Jersey job applicants who are denied a position due to testing positive for marijuana have no legal recourse to sue the employer. The decision comes from a 2-1 split vote by the Court of Appeals for the Third Circuit, with two judges agreeing that employment discrimination for marijuana use is prohibited under New Jersey’s Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act (CREAMMA), a 2021 state law that legalized recreational marijuana.
However, Judge Peter Phipps, a Trump appointee, wrote in the majority opinion that there is no legal remedy for being denied a job due to a positive marijuana test because of “legislative silence” on the matter. Phipps noted that while New Jersey voters overwhelmingly supported the legalization of marijuana, the state legislature did not provide a remedy for violating the statute’s cannabis-related employment protections.
The case stems from a lawsuit filed by Erick Zanetich, who claimed that his job offer was rescinded by Walmart after he failed a drug test due to testing positive for marijuana. Zanetich’s attorney, Justin Swidler, stated that the court’s decision effectively “nullifies key employee protections” that bar employers from taking action against workers or job applicants who test positive for cannabis.
The ruling has left employers struggling to balance the need to maintain a drug-free workplace with the right of employees to use cannabis on their personal time. Experts note that marijuana’s effects can linger for days, and drug tests can detect THC, the compound in pot that causes a high, weeks after consumption.
The case is likely to be taken up by the New Jersey Supreme Court, according to Judge Arianna Freeman, a Biden appointee. The Third Circuit serves the areas of New Jersey, Pennsylvania, Delaware, and the Virgin Islands.
