The Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act – referred to herein as ‘CREAMMA.’ does not expressly provide a private remedy for redressing employment discrimination against cannabis users.
Case Summary:
Erick Zanetich applied for an asset protection position at a Walmart facility in New Jersey. After a positive pre-employment marijuana test, Walmart rescinded the job offer. Zanetich subsequently filed a lawsuit against Walmart, alleging that this decision violated the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), a New Jersey law that legalized recreational cannabis use.
Key Legal Issues:
- Workers' Compensation Exclusivity Rule: This rule generally bars employees from suing their employers for workplace injuries covered by workers' compensation. The purpose is to provide a swift and certain system for compensating injured workers while limiting employer liability for retaliatory firing.
- Common law Action: Concurrent jurisdiction exists.
“The only case decided by the New Jersey Supreme Court, Lally v. Copygraphics, 428 A.2d 1317 (N.J. 1981) (per curiam), recognized a common-law cause of action for a “retaliatory firing attributable to the filing of a workers’ compensation claim,” id. at 1318. The rationale for that ruling was that the New Jersey workers’ compensation statute prohibits retaliatory firings, and so there must be a remedy because “[i]f the Legislature had wanted to foreclose a judicial cause of action, it would have done so expressly.” Id. at 1318–19. That conclusion fits nicely within the pre-Cort jurisprudence in which a right was presumed to create a remedy. See, e.g., Marbury, 5 U.S. (1 Cranch) at 163. Indeed, Lally was decided before New Jersey adopted the modified Cort test. See In re State Comm’n of Investigation, 527 A.2d at 852–54. But with New Jersey’s subsequent adoption of a modified Cort test, the rationale of Lally for implying a remedy has lost its force. See R.J. Gaydos, 773 A.2d at 1143."
- CREAMMA and Private Right of Action: The central question was whether CREAMMA, which prohibits employers from refusing to hire adult cannabis users, created a separate cause of action for job applicants like Zanetich.
The 3rd Circuit's Ruling:
The 3rd Circuit Court of Appeals ruled in favor of Walmart. They held that:
- No Implied Private Right of Action: CREAMMA does not explicitly grant individuals the right to sue employers for violating its provisions. The court emphasized that the legislature did not intend to create a new avenue for employment-related lawsuits beyond the existing workers' compensation system.
- Workers' Compensation Remains Applicable: The court reaffirmed the applicability of the workers' compensation exclusivity rule. Since Zanetich's claim arose from his employment application, it fell within the scope of this rule, barring him from pursuing a separate lawsuit.
Implications:
This decision has significant implications for employers and job applicants in New Jersey. It clarifies that CREAMMA does not provide a standalone legal basis for individuals to sue employers for rescinding job offers due to positive marijuana tests.
Related Resources:
CREAMM Act
Navigating the Complexities of Workers' Compensation Exclusivity in New Jersey 1/5/2024
NJ Supreme Court Limits Employer Insurance Coverage for Worker Injuries
ORDER NOW
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*Jon L. Gelman of Wayne, NJ, is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise Modern Workers’ Compensation Law (West-Thomson-Reuters). For over five decades, the Law Offices of Jon Gelman 1.973.696.7900
jon@gelmans.com has represented injured workers and their families who have suffered occupational illnesses and diseases.
Blog: Workers' Compensation
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