Fired or Denied Employment Because of a Positive Drug Screen? Now What?

What happens when a New Jersey candidate for employment is denied a job just because he or she tested positive for the legal use of cannabis? That’s been a question on the minds of employment lawyers ever since the legislature legalized cannabis use. That is because while the Cannabis Regulatory, Enforcement Assistance, and Market Modernization Act (“CREAMMA” or the “Act”) makes it unlawful to fire, refuse to hire or take other adverse actions against employees solely on the basis of a positive test for cannabis, N.J.S.A. 24:6I-52(a)(1), the Act does not explicitly allow employees to file suit if they have been fired just for testing positive for cannabis. Instead, the only penalties are civil monetary penalties that can be imposed against employers. N.J.S.A.34:6b-21. Such penalties, however, do nothing to help employees who have been fired from stable jobs for doing nothing more than engaging in legal activities while not working.

On May 26, 2026, the Appellate Division gave hope to New Jersey employees when it decided Sanders v. The Levari Group, LLC. 2026 WL 1532963 (App. Div., May 26, 2026). In that case, a candidate for employment was required to undergo a drug test as part of the employer’s standard hiring process. The test results came back positive for cannabis use and the candidate admitted to having used cannabis recreationally within the past 30 days although she denied using cannabis or being under its influence on the day of the drug test. The defendant-employer revoked the candidate’s offer of employment after she declined to retake a drug test at her own expense within the week. Ultimately, that candidate filed suit asserting a claim under CREAMMA for an unlawful failure to hire as well as a claim for wrongful termination in violation of New Jersey’s public policy — what lawyers generally refer to as a Pierce claim. The trial court dismissed the plaintiff’s Complaint because: (1) the Legislature did not specifically allow candidates for employment to sue under the Act if their offer of employment was revoked just because they tested positive for cannabis, and (2) the candidate for employment had not yet been employed at the time that her offer of employment was revoked and, therefore, she could not bring a wrongful termination claim in violation of public policy.

The Appellate Division recognized that the Act does not expressly allow candidates for employment to sue if their offer is revoked (or employees to sue for being fired for that matter), but took the analysis one step further by pointing out that courts can recognize when the legislature intended to implicitly create a private causes of action (a way to pursue a lawsuit) even if the legislature did not explicitly include a mechanism for doing so in the statute. Analyzing factors articulated by the Supreme Court of the United States in Cort v. Ash, 422 U.S. 66 (1975), to determine whether a legislature implicitly created a way to file suit, the Appellate Division concluded that (1) the plaintiff-candidate for employment was intended to benefit from CREAMMA, (2) the New Jersey Legislature intended to create a private right of action for people like the plaintiff given that CREAMMA includes “‘rights-creating language’” (meaning candidates for employment cannot be denied employment and employees cannot be fired just because they tested positive for cannabis) but the Act has no way to enforce that right, and (3) a private right of action (providing candidates for employment and employees with a way to sue) is consistent with the purpose of CREAMMA – to prevent the revocation of employment offers as well as to prevent firings simply because of a positive drug screen for cannabis.

That is how the Appellate Division concluded that the legislature intended CREAMMA to provide a way by which candidates denied employment and employees fired solely because of positive drug screen could sue to enforce the Act’s anti-discrimination provision. As a result, the Appellate Division reversed the trial court’s dismissal of the plaintiff’s claim for a violation of CREAMMA. The Appellate Division, however, agreed with the trial court’s decision to dismiss the wrongful termination public policy count of the plaintiff’s Complaint because such claims only apply when there is a wrongful discharge/unlawful firing and the plaintiff was never an employee – meaning, wrongful discharge claims do not apply when there is a failure to hire.

So what does this mean for New Jersey employees who were fired for testing positive for cannabis use? Well, it means that New Jersey employees can sue employers who fire them for simply testing positive under the Act as long as those employees do not fall into one of the very limited exceptions to CREAMMA. The claims employees can bring are a statutory discrimination claim under CREAMMA and an unlawful firing/wrongful discharge in violation of public policy of New Jersey (a Pierce claim).