*

New Jersey law bars discrimination against cannabis users

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But a judge said the law does not authorize private

lawsuits

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Federal appeals judges suggested a state court should step

in

By Daniel Wiessner

March 6 (Reuters) - A U.S. appeals court panel on

Wednesday seemed poised to ask New Jersey's top court to decide

whether a state law barring employment discrimination against

cannabis users gives workers the ability to sue for violations

in a case involving Walmart ( WMT ).

A three-judge 3rd U.S. Circuit Court of Appeals panel in

Philadelphia heard arguments in a bid by Erick Zanetich, who was

denied a job as a security guard by Walmart ( WMT ) after he tested

positive for cannabis, to revive a 2022 proposed class action

claiming the retail giant's drug policy violates a 2021 New

Jersey law.

The law bars employers from rejecting job applicants or

firing workers for using cannabis on their own time, though it

does allow for workers to be fired if they are impaired on the

job. New Jersey is one of 24 states where recreational marijuana

is legal.

U.S. District Judge Christine O'Hearn in Camden, New Jersey,

ruled last year that the law does not create a private right of

action allowing workers like Zanetich to sue, and that only a

state cannabis board can enforce it.

On Wednesday, 3rd Circuit Judges Kent Jordan and Peter

Phipps suggested that because the appeal presents an

unprecedented question about a state law, the New Jersey Supreme

Court should have a chance to address it.

The state court has ruled that workers have the right to sue

if they are fired for reasons that violate public policy, but

has never addressed the question in a case involving spurned job

applicants.

"You acknowledge it is an expansion and you don't have a

case [to cite] where it was extended to somebody who isn't

actually an employee," Jordan said to Zanetich's lawyer, Justin

Swidler.

Swidler said the existing precedent on wrongful firings was

enough for the 3rd Circuit to conclude that New Jersey's top

court would rule the same way in the Walmart ( WMT ) case, and that

sending the case to the court was unnecessary. But the judges

sounded skeptical.

"Maybe we should put this back in the New Jersey courts to

decide this novel question," Phipps said.

State and federal judges in Pennsylvania, Connecticut,

Delaware, Arizona and other states have said that medical

marijuana laws allow workers to sue for discrimination, even

when they do not explicitly authorize it.

Misha Tseytlin of Troutman Pepper, who represents Walmart ( WMT ),

told the 3rd Circuit panel that if New Jersey lawmakers meant to

authorize private lawsuits, they would have made that clear in

drafting the law. He said O'Hearn correctly found that the law's

silence amounted to a bar on lawsuits by workers.

The 3rd Circuit panel includes Circuit Judge Arianna

Freeman.

The case is Zanetich v. Walmart Stores East, 3rd U.S.

Circuit Court of Appeals, No. 23-1996.

For Zanetich: Justin Swidler of Swartz Swidler

For Walmart ( WMT ): Misha Tseytlin of Troutman Pepper

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