The New Jersey Employment Law Firm Blog
New Jersey has allowed the use of cannabis for at least some reasons for the last fifteen years. Still, the relationship between New Jersey employment law and cannabis law remains uncertain. Employees in New Jersey who use cannabis for medical purposes with a doctor’s prescription may have rights under state laws prohibiting disability discrimination. A much newer law allows recreational use of small amounts of cannabis. This law specifically states that employers may not discriminate against employees based on legal cannabis use outside of work, provided they are not under the influence of cannabis while at work. A job applicant filed suit against a major retailer after it rescinded a job offer because a drug test was positive for cannabis. The Third Circuit Court of Appeals ruled in late 2024 that the recreational cannabis law does not give job applicants or employees the right to file a private cause of action for alleged discrimination. This leaves employees with legal rights against discrimination but no clear means of enforcing those rights.
The New Jersey medical cannabis law took effect in 2009. It originally stated that employers did not have to accommodate medical cannabis use. Subsequent amendments to that section of the law have removed that language. Currently, the medical cannabis law does not contain any explicit employment protections. A 2020 ruling by the New Jersey Supreme Court, however, held that the New Jersey Law Against Discrimination’s prohibition on disability discrimination applies to medical cannabis use outside of work. The case involved an employee who lost his job after his employer discovered he used cannabis with a prescription to treat the symptoms of cancer.
The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) became law in 2021. It states that an employer may not refuse to hire or fire someone, nor may it discriminate in other ways because a person does or does not use cannabis for lawful recreational purposes. It also states that employers may not take adverse actions solely based on “the presence of cannabinoid metabolites” in a drug test resulting from lawful cannabis use. Employers may, however, require drug testing to ensure employees are not working under the influence. The statute does not state that employees may file suit for alleged violations, although some courts have allowed discrimination claims to proceed.
The plaintiff in the Third Circuit case received a conditional job offer from the defendant in 2022. He submitted to a drug test, which was positive for cannabis. The defendant allegedly had a policy barring employment of anyone “who tests positive for illegal drug use.” The plaintiff filed suit for unlawful discrimination under CREAMMA and failure to hire in violation of New Jersey public policy. He argued, in part, that the drug test did not detect “illegal” drug use because of CREAMMA.
The defendant moved to dismiss the case in the district court because CREAMMA does not provide a private cause of action. The plaintiff argued that CREAMMA implies a cause of action and that he could still proceed under a common law claim of failure to hire. The district court disagreed and granted the motion to dismiss. The Third Circuit affirmed the dismissal.
New Jersey and New York workers who have experienced unlawful workplace practices may be entitled to compensation under state or federal law. If your employer has engaged in actions you believe violated your rights, please contact the experienced and knowledgeable employment lawyers at the Resnick Law Group today at 973-781-1204, 646-867-7997, or online. We are ready to schedule a confidential consultation to see how we can help you.