Drug Test Dilemma: Court Ruling Highlights Limits of State Cannabis Protections for Employees

This article is from The National Law Review: https://ow.ly/InoV50UsVVv As cannabis legalization continues to expand across the U.S., so too do the questions employers face around drug testing and workplace policies. While many state laws now include protections for workers who legally use cannabis, a recent federal court decision underscores a critical—and often overlooked—limitation: not all protections come with a legal remedy.

In Zanetich v. Wal-Mart Stores East, the Third Circuit Court of Appeals upheld a decision dismissing an employee’s lawsuit, ruling that New Jersey’s cannabis protection law does not provide individuals with a private right of action. For employers and employees alike, this case is a reminder that what the law promises and what it enforces can be two very different things.

The Case: What Happened?

In 2021, New Jersey passed the Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act (CREAMMA), which legalized cannabis and included anti-discrimination provisions related to its use. Under CREAMMA, employers are prohibited from taking adverse employment actions solely because an individual uses cannabis or tests positive for it.

However, when Erick Zanetich applied for a job at a Wal-Mart facility in 2022 and tested positive for cannabis, the company rescinded his offer. Zanetich sued, claiming Wal-Mart violated CREAMMA’s anti-discrimination protections. But there was a legal catch: CREAMMA does not contain a “private right of action”, meaning it doesn’t explicitly allow individuals to sue employers directly under that law.

Both the district court and the Third Circuit agreed—without a clearly stated remedy in the statute, courts won’t step in to create one. The case was dismissed.

What This Means for Employers

This decision offers two big takeaways:

Employers should not treat this as a free pass to disregard cannabis-related employee protections. State regulators may still enforce these laws, and other statutes (such as disability or civil rights laws) could apply in certain contexts.
State cannabis laws must be read carefully—especially when it comes to enforcement mechanisms. Just because a statute says employers “shall not discriminate” doesn’t mean employees have the right to sue if they feel those protections were violated.

The Larger Implication: Policy vs. Practicality

The Zanetich decision highlights a growing gap between legislative intent and legal enforcement. Many state cannabis laws contain broad protective language for employees but fail to include the tools necessary for employees to enforce those rights in court. Unless or until lawmakers amend these statutes to provide a private right of action, employees may find themselves without recourse—even when their rights appear to be violated.

Moving Forward: What Employers Should Do

Review your drug testing and hiring policies regularly to ensure they reflect both the letter and spirit of state law.
Work with legal counsel to understand where your state stands on cannabis use and employee rights—and whether its laws carry a private right of action.
Communicate clearly with applicants and employees about your company’s policies regarding drug use, testing, and any exceptions.

Final Thoughts

The cannabis policy landscape is rapidly evolving, and employers must keep pace with not just legislative changes, but also court interpretations that shape how those laws function in practice. The Zanetich case is a cautionary tale: state protections may sound strong, but without a legal remedy, their real-world impact can be limited.

As always, when in doubt, seek legal guidance before taking action based on drug test results—especially in states with evolving cannabis laws.