The appeal could also shine a light on the continuing clash between long-standing federal law criminalizing the possession and use of marijuana and the growing body of state laws giving rights to those using cannabis for medical or non-medical reasons.
Erick Zanetich is challenging a federal judge’s May 25 dismissal of his suit against Walmart Stores East Inc. Zanetich sued after he received an offer for an asset protection job that was later pulled because he tested positive for cannabis.
Walmart policy at the time and through at least June 2023 made any worker who tested positive ineligible for employment, despite a provision in the state’s Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act prohibiting employers from refusing to hire someone for that reason, Zanetich said. The suit was also brought on behalf of other recreational marijuana users in New Jersey allegedly harmed by the policy.
But because CREAMMA doesn’t expressly say that individuals can sue employers for job bias, the law needs to be interpreted as having implied a private cause of action in order for Zanetich and other workers to be able to sue. US District Court for the District of New Jersey Judge Christine P. O’Hearn said in May that Zanetich failed to show such an implied right exists in CREAMMA.
According to Walmart, O’Hearn was correct to reject Zanetich’s implied-right argument, because there’s no evidence that’s what state lawmakers intended. CREAMMA’s purpose is to regulate cannabis similar to how alcohol has long been regulated, and the state regulatory commission that oversees the law is empowered to enforce its employment discrimination ban, the retailer says.
Novel Case
Walmart and Zanetich agree that the issue is one of first impression, but they disagree on whether O’Hearn analyzed the question correctly.
Zanetich is right that federal judges addressing whether a state law implies a private right of action should try to predict how the state’s top court would rule, said employee-rights attorney Scott M. Pollins of Wayne, Pa.
According to Zanetich, O’Hearn instead said federal courts should be even more hesitant to read a claim into a state law than state courts are, departing from the proper test.
In his experience, what the district judge did here isn’t how a federal court is supposed to handle the analysis, Pollins said.
But management-side attorney Carol A. Sigmond believes the lower court “got it right.”
Federal judges generally are more reluctant than state judges to find an implied claim under state law, Sigmond said. That’s consistent with jurisdictional rules that are in place to maintain order and protect against overreach by federal courts, she said.
‘It’s All New’
Pollins said Zanetich also properly relies on decisions under other states’ medical marijuana laws in seeking to revive his case.
Those cases bolster Zanetich’s argument that CREAMMA should be understood as creating a private right for New Jersey workers to sue, even though the statute doesn’t expressly spell that out, Pollins said. That’s one of the places courts most naturally look when deciding novel issues under a state law, he said.
Sigmond’s fellow Greenspoon Marder LLP partner Nick Richards didn’t see a problem with that.
“It’s all new,” so it’s not unusual that a court in one state would look to see what’s being done elsewhere, Richards said.
It probably doesn’t make a difference that the cases involving state laws in Arizona, Connecticut, Delaware, Nevada, Pennsylvania, and Rhode Island were decided under medical marijuana laws rather than a recreational marijuana statute, he said.
Pollins agreed.
It would needlessly take the Third Circuit into policy considerations if the court were to draw a distinction between laws aimed at medical use and those protecting recreational use, Pollins said. That would make the appeal broader than it is by bringing in legalization issues, he said.
Sigmond said she too believes a ruling on Zanetich’s appeal is unlikely to delve into those deeper policy issues.
It’s more likely the appeal will be decided based on the narrowness of CREAMMA, Sigmond said. Federal judges tend to try to only answer federal questions. That’s even more true at the appellate level, she said.
‘Infancy of Science’
The likely narrowness of a ruling by the Third Circuit means it’s probably going to be a less helpful decision than hoped towards reconciling ongoing differences between federal and state law on the legality of cannabis use, which have significant implications for the workplace, Sigmond said.
There’s a “duality problem,” with marijuana classified as a Schedule I controlled substance under federal law because it’s viewed as having no currently accepted medical use and a high potential for abuse, Sigmond said. On-the-job impairment is a paramount concern for employers and their insurers, and because cannabis is a Schedule I drug, federal funding for research into better ways to test for marijuana-related impairment is hampered, she said.
Effective testing for on-the-job impairment could be a “game-changer,” Sigmond and Richards said.
Such testing would be beneficial because marijuana stays in the system for a while after it’s used, Richards said. But using it the night before likely wouldn’t have residual impairing effects work-wise the next day, he said.
If marijuana were reclassified to Schedule II under the federal Controlled Substances Act, as is currently under review, then it would be eligible for federal research funds, Richards and Sigmond said.
“We’re in a very complicated place” right now because of the clash between federal law and state laws, and because we’re “at the infancy of the science” with regard to cannabis’ effects and impairment testing, Sigmond said. The science needs to be advanced before something is done federally, she said.
A better test for active impairment likely wouldn’t just impact workers in safety-sensitive jobs, which is a primary concern of employers when it comes to marijuana legalization, Richards said. No company wants “you impaired on-the-job” regardless of what type of work someone does, and more effective testing would create “a completely different situation,” he said.
Certification in Play
Zanetich’s appeal also asks the Third Circuit to certify to the New Jersey Supreme Court the question of whether CREAMMA implies a private cause of action.
Sigmond thinks it’s unlikely the Third Circuit will grant that request. CREAMMA makes clear that there is no private right of action for workers, she said.
But Pollins believes the issue is “perfectly teed up for certification.” It’s unlikely Zanetich’s appeal will be decided on the merits, he said.
He agrees with Zanetich that unless the decision below is reversed, CREAMMA’s job bias prohibitions will lack force. What that would really be saying is that the law’s employment bias ban isn’t really a protection at all, Pollins said.
If it isn’tone of CREAMMA’s purposes to allow workers to combat bias based on lawful recreational cannabis use, then why is the employment discrimination prohibition in the statute, he said.
Judges Kent A. Jordan, Peter J. Phipps, and Arianna J. Freeman will hear the appeal.
Swartz Swidler LLC represents Zanetich. Troutman Pepper Hamilton Sanders LLP represents Walmart.
The case is Zanetich v. Wal-Mart Stores E., Inc., 3d Cir., No. 23-01996, oral argument 3/6/24.