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On May 26, 2026, the Appellate Division of the Superior Court of New Jersey held that a private right of action exists for claims by applicants for violating certain provisions of New Jersey’s Cannabis Regulatory, Enforcement Assistance, and Market Modernization Act (“CREAMMA”). Sanders v. The Levari Group, LLC, No. A 2715 23.
New Jersey amended its Constitution to legalize recreational cannabis use by individuals over 21 years old effective in January 2021. Shortly after that amendment, CREAMMA was enacted in February 2021. Among other provisions, CREAMMA prohibits most employers from refusing to hire an individual solely because that person has tested positive for cannabis metabolites, with certain exceptions, and also protects incumbent employees who use cannabis.
The plaintiff in Sanders alleged that she interviewed for a customer service position, received and accepted an offer, and then underwent pre-employment drug screening. After she tested positive for cannabis metabolites, based on prior recreational use, the employer rescinded the job offer. The plaintiff sued, alleging the employer violated CREAMMA by refusing to hire her based on lawful cannabis use. The trial court dismissed the complaint, concluding that CREAMMA did not provide a private right of action and that the plaintiff’s remedy, if any, was limited to administrative enforcement through the State’s Cannabis Regulatory Commission (“CRC”).
On appeal, the Appellate Division reversed and held that a private right of action existed. The Court explained that, although the CRC is responsible for regulating aspects of the cannabis industry and addressing certain discrimination issues, the Legislature did not establish an administrative enforcement mechanism for the hiring protections at issue. As a result, the Court determined that a private right of action must be implied, reasoning that, without a statutorily authorized administrative remedy, the anti-discrimination provisions would be unenforceable unless individuals were able to bring suit. Accordingly, the Court reinstated the plaintiff’s CREAMMA claim and also permitted her related claims for negligence, invasion of privacy, and breach of contract to proceed.
Takeaways
Employers in New Jersey should be aware that, as long as this decision remains law (prospects for this being taken up by the New Jersey Supreme Court are uncertain), individuals may now sue in court for alleged violations of CREAMMA’s hiring protections and recover damages and attorneys’ fees. It seems likely the Appellate Division’s rationale will be applied to any claims by incumbent employees who allege that they were unlawfully subjected to adverse action based on their lawful cannabis use. Accordingly, the use of drug testing policies that screen for cannabis metabolites may expose employers to liability in New Jersey.
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