In a case of first impression, the U.S. District Court for the District of New Jersey found the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act ("the Act") does not create a private right of action for individuals who believe their rights have been violated under the Act.

Signed February 22, 2021, the Act legalized the use of recreational marijuana for adults over the age of 21 and prohibited employers from taking any adverse action against an employee because they do or do not use cannabis items. While employers may still prohibit the use and possession of marijuana in the workplace or during working hours, they may not take any action solely on the basis of a positive drug test.

In the case before the district court, the employer rescinded the plaintiff's conditional offer of employment after he tested positive for marijuana.

The court granted the defendant's motion to dismiss and determined that there is no implied private right of action under the Act. In reaching the decision, the court made specific reference to the fact that the New Jersey Legislature did not explicitly state how the refusal-to-hire provision of the Act could be enforced and by whom, and what, if any, remedies would be available. To the contrary, the legislature created the Cannabis Regulatory Commission (the "Commission"), empowering it with the authority to investigate and aid in the prosecution of every violation of state laws relating to cannabis and cannabis-related items.

The court recognized that this decision rendered the language of the Act's employment provision "meaningless," and leaves employees without protections the Act might have contemplated. The court noted, however, that it was not a proper function of the court to rewrite the legislation on behalf of the legislature. The court further stated that if New Jersey lawmakers want workers to have protections under the Act, they need to rework the statute to clarify that individuals can take legal action under it.

The court specifically called on the New Jersey Legislature, the Commission, or the New Jersey Supreme Court to amend the law or issue a contrary ruling, as appropriate.

While the decision provides New Jersey businesses with a viable defense to private lawsuits brought pursuant to the Act, this landscape is ever-changing and the potential for an appeal or legislative intervention should be considered before taking any action based on applicant or employee marijuana use or a positive marijuana test result.

Posted: May 11, 2023