Read beyond the headline

On December 9, the U.S. Court of Appeals for the Third Circuit issued its much-anticipated, precedential opinion in Zanetich v. Wal-Mart Stores East, Inc., et al.

Those who harbored hope that the Zanetich decision would illuminate the legal landscape continue to ponder the contours of adverse employment actions based upon suspected cannabis impairment in the workplace.

***Continue reading if (1) you consider your New Jersey business to be a responsible corporate citizen, or (2) you are a Garden State employee who cares about being free of workplace discrimination on the basis of alleged cannabis impairment.***

The Executive Summary

For the uninitiated: In 2022, Erick Zanetich sought employment with Walmart, which extended a conditional offer of employment “subject to him submitting to and passing a drug test.” Upon receiving the “hot” result, Walmart rescinded its offer. Zanetich brought suit, alleging (1) discrimination proscribed by the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act ("CREAMMA") and (2) failure to hire in violation of New Jersey public policy.

This was a bold litigation gambit, as CREAMMA does not provide for an express private right of action. Undeterred, Zanetich maintained that the Legislature must have intended for there to be an implied private right of action.

On May 25, 2023, Hon. Christine O'Hearn, U.S.D.J. granted Defendants’ motion to dismiss. With little mincing of words, the District Court “recognize[d] that its decision leaves Plaintiff without a remedy and essentially renders the language of the [CREAMMA] employment provision meaningless.”

Zanetich appealed.

A Second Look 

Early in its de novo analysis, the Court cited Alexander v. Sandoval, a 2001 SCOTUS decision, for the proposition that “[t]o create a private cause of action, a law must provide not only a private right but also a private remedy.” CREAMMA does not.    

In affirming the lower court ruling, the Third Circuit panel declined the opportunity to certify a pair of questions to the NJ Supreme Court, a move which should produce universal disappointment among employers, employees, labor leaders, and workers’ rights advocates.

Give It Time 

Legal scholars often note that today’s dissenting opinion may well become tomorrow’s majority holding.  Zanetich may one day join such exclusive company. 

Writing separately, Hon. Arianna J. Freeman, U.S.C.J. (concurring in part/dissenting in part) may offer a prescient glimpse of things to come. 

“This issue is also likely to recur. For decades, New Jersey employers have administered drug tests as a condition of employment ... Given the sheer number of employment relationships potentially impacted by CREAMMA’s employment protections, the issue in this case is likely to arise again.”

It bears noting the nuanced nature of the Zanetich holding, as it applies to prospective employees, not current employees. As the majority observed, “CREAMMA’s second protection shields employees from adverse employment actions based solely on a positive drug test for cannabis … While that provision may have an unmistakable textual focus on employees with positive cannabis test results, the clause by its own terms applies only to current employees – not prospective employees. So, as a job applicant, Zanetich is outside of the particular class that this protection may specially benefit.”

The Tip of the Litigation Iceberg

Rescinding a conditional offer of employment is among the most infrequent adverse employment actions.  Its imposition pales in comparison to instances of suspension or termination, either of which places an employer in a potentially actionable position in a post-CREAMMA environment. 

Little known and less understood, the Workplace Impairment Recognition Expert (“WIRE”) is perhaps simultaneously CREAMMA’s most significant and least discussed feature.  There is no minimum employee headcount to qualify a New Jersey employer as a covered entity.  In addition to requiring more than a urinalysis for the legal basis upon which to justify an adverse employment action, the WIRE regimen calls for: (1) development of a standard operating procedure (“SOP”); (2) certification of an individual to serve as a WIRE; (3) certification of a Qualified Observer to independently confirm the WIRE’s findings;  and (4) completion of a standardized observation form (within 24 hours of the subject observations) to establish Reasonable Suspicion of suspected cannabis impairment in the workplace.  

In the absence of legislative enactment, regulatory enforcement, or judicial interpretation, today’s Garden State jobsites are indeed a brave new world. 

Zanetich is merely the opening volley on the legal battlefield which pits an employee’s right to engage in lawful, off-the-clock activity against an employer's obligation to ensure a hazard-free workplace.