Last month, the New Jersey Appellate Division held that individuals have an implied private right of action against employers under the Cannabis Regulatory, Enforcement Assistance, and Market Modernization Act (“CREAMMA”) when an employer refuses to hire or takes adverse employment action based on a positive test for cannabinoid metabolites. The case, Sanders v. The Levari Group, LLC, is the first New Jersey state court decision to address the question, and it carries significant implications for New Jersey employers that maintain pre-employment drug testing programs or condition offers of employment on drug screening results.
Case Facts and Superior Court Decision
The case concerns a plaintiff who interviewed for a customer service representative position with the defendant employer in December 2022. After the plaintiff accepted a job offer, the employer required her to take a pre-employment drug test as part of its standard hiring process. The test results indicated that she had used cannabis within the prior thirty days. The plaintiff confirmed that she had used cannabis recreationally within that time frame, but was not under the influence of cannabis at the time of the drug test or when she applied for the position.
When the plaintiff subsequently contacted the employer’s human resources department to inquire about her start date, the employer offered her the opportunity to submit to a repeat drug test within a week at her own expense. The plaintiff did not retest because she could not afford to pay for it; the employer then rescinded its offer and refused to hire her.
The plaintiff filed suit, alleging among other claims that the employer violated her rights under CREAMMA by refusing to hire her based on her recreational use of cannabis. The trial court dismissed the CREAMMA claim, concluding that the plaintiff’s remedy was through the Cannabis Regulatory Commission (“CRC”) rather than the Superior Court. The plaintiff appealed.
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