In what amounts to maybe the most significant move from the federal government concerning marijuana, the President recently pardoned all those convicted under federal law for simple marijuana possession. In addition, the President has requested a review by Attorney General of marijuana’s schedule 1 status, with seemingly the goal of de-scheduling the drug, leaving its legal status to the states. In his statement, the President commented that marijuana convictions have led to “needless barriers to employment, housing, and educational opportunities”.
At the same time, there is news that Walmart/Sam’s Club has requested that a federal Judge in New Jersey dismiss a proposed class action brought by prospective employees who were refused employment for testing positive for marijuana on a pre-employment drug screening. The suit has been brought under New Jersey’s adult use law, The New Jersey Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act, which went into effect in February 2021. The law specifically states employers cannot refuse to employ or terminate existing employees because they use marijuana when not working. Walmart is arguing that the law does not provide an implied private cause of action for individuals to bring a case and that only the state has the right to enforce the law.
In Zanetich v. Wal-Mart Stores East, Inc., Case No. 1:22-cv-05387 (D.N.J. Sept. 2, 2022), the plaintiff, Erick Zanetich, had applied for and been offered a job doing security by Walmart however after testing positive for marijuana in his mandatory pre-employment drug screening the offer of employment was rescinded. The case was brought on behalf of the plaintiff and those denied employment and/or who were subject to any adverse employment action due to a positive test result by Wal-Mart/Sam’s Club.
Comment: Although marijuana is still a schedule 1 banned substance the trend clearly seems to be moving in the other direction on both a state and federal level. Given New Jersey’s legalization of marijuana and seemingly the protections provided for employees therein we await the Court’s position in the above case and will keep you posted with any updates. Employers operating in states with legal marijuana need to consult with counsel regarding their rights and obligations under these laws if they have not done so to date. Each state’s law is different and needs to be considered.
Chief Marketing and Business Development Officer