A divided U.S. appeals court on Monday said a New Jersey law barring employment discrimination against cannabis users does not allow for private lawsuits, and tossed out a proposed class action against Walmart.
The Philadelphia-based 3rd U.S. Circuit Court of Appeals in a 2-1 ruling, opens new tab said that because the state law approved by voters in 2020 did not create any remedies for workers who sue for violations, the legislature must have intended to leave enforcement to the state alone.
“The lack of an express remedy is better understood as a deliberate choice not to provide a remedy rather than an oversight of an intended remedy,” Circuit Judge Peter Phipps wrote.
The court affirmed the dismissal of a 2022 lawsuit by Erick Zanetich, who was denied a job as a security guard by Walmart after he tested positive for cannabis, claiming the company’s drug screening policy violated the New Jersey law.
Walmart spokeswoman Kelly Hellbusch in an emailed statement said, “We are pleased with the Third Circuit’s opinion.”
Justin Swidler, who represents Zanetich, said the decision was a significant setback for both cannabis and employment law in New Jersey.
“Our team is currently evaluating all available options, including seeking en banc review, as we remain committed to defending the will of New Jersey voters and the essential protections they chose to establish for workers in our state,” Swidler said in an email.
New Jersey’s law bars employers from rejecting job applicants or firing workers for using cannabis on their own time, though it does allow for workers to be fired if they are impaired on the job. New Jersey is one of 24 states where recreational marijuana is legal.
State and federal judges in Pennsylvania, Connecticut, Delaware, Arizona and other states have said that medical marijuana laws allow workers to sue for discrimination, even when they do not explicitly authorize it.
But U.S. District Judge Christine O’Hearn in Camden, New Jersey, ruled in Walmart’s case last year that the state’s law does not create a private right of action allowing workers like Zanetich to sue, and that only a state cannabis board can enforce it.
The 3rd Circuit on Monday agreed. Phipps was joined by Circuit Judge Kent Jordan. Both judges were appointed by Republican presidents.
Circuit Judge Arianna Freeman in dissent said that if New Jersey lawmakers wanted to foreclose private lawsuits, they likely would have done so explicitly as they have in other employment-related laws. She said that, at a minimum, the 3rd Circuit should have asked the New Jersey Supreme Court to decide the novel issue.
“Given the sheer number of employment relationships potentially impacted by [the law’s] employment protections, the issue in this case is likely to arise again,” wrote Freeman, an appointee of Democratic President Joe Biden.
H/T: www.reuters.com
