In a decision of first impression issued May 26, 2026, the New Jersey Appellate Division held that the Cannabis Regulatory, Enforcement Assistance, and Market Modernization Act (CREAMMA) contains an implied private right of action, allowing employees and job applicants to sue employers directly over adverse employment actions based on cannabis use. The ruling converts CREAMMA's employment protections from a regulatory backdrop into a directly enforceable right, and a direct source of civil exposure.
Background
The plaintiff accepted an offer for a customer service position contingent on a pre-employment drug test. After a positive cannabis result, the employer offered her the chance to retake the test at her own expense; when she could not afford to do so, the offer was rescinded. She sued, and the question became whether CREAMMA, which prohibits employers from refusing to hire or taking adverse action against a person solely because of cannabis use, gives an aggrieved individual any right to enforce that prohibition in court.
The Decision
Applying the three-factor Cort v. Ash framework, the Appellate Division held that it does. Applicants and employees are the class CREAMMA's employment provisions were enacted to protect; the legislative scheme evidences an intent to make those protections meaningful; and implying a private remedy is consistent with the statute's purposes. Notably, the decision creates a direct split with the Third Circuit, which held in 2024 in Zanetich v. Wal-Mart that CREAMMA creates no private right of action. New Jersey state courts and federal courts sitting in New Jersey now answer the same question differently.
What It Means for New Jersey Cases
For workers, Sanders supplies a remedy that CREAMMA's text never expressly provided: an applicant or employee who suffers adverse action based solely on a positive cannabis test, without evidence of workplace impairment or a recognized exception, can now sue in Superior Court. For employers that test for cannabis, the same fact pattern is immediate litigation exposure, and CREAMMA counts are likely to be paired with LAD and wrongful discharge theories. The exposure is broadest in high-turnover, high-volume hiring environments, retail, logistics, hospitality, and staffing, where pre-employment testing has been a routine screening step for decades.
How We Put It to Work
The state-federal split is the most important strategic feature of the current landscape. The forum can decide the case: in state court, Sanders recognizes the claim; in federal court, Zanetich remains controlling authority against it. Forum selection, removability, and remand fights will accordingly be front and center in early motion practice, and we analyze them the day a CREAMMA dispute arises. On the merits, the statute prohibits action based solely on cannabis use, so contemporaneous documentation, of impairment, safety concerns, or independent grounds for the decision, will be the central evidence on both sides. Employers should update drug-testing and hiring policies now, because what a policy says about cannabis, retesting, and impairment assessment will be Exhibit A in the litigation this decision invites. Given the split in authority, the issue is a strong candidate for New Jersey Supreme Court review, and we are tracking it closely for our clients.
This article is provided for general informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship with Sanchez Maselli Trial Attorneys.