Ruling Let Applicants Sue over Rejection for Marijuana Use

When a New Jersey court this year allowed people to sue employers who deny them jobs or promotions because of recreational marijuana use, the ruling potentially opened the gates for lawsuits by job applicants and employees elsewhere who allege they were discriminated against for using cannabis. 

“Marijuana use, both medical and recreational, has become considerably more prevalent and accepted in recent years, and more and more states are either including language pertaining to lawful off-duty conduct in their marijuana legalization laws or enacting separate laws addressing the issue,” said Christina Mallatt, an attorney with Ogletree Deakins in Indianapolis.

As of early 2026, 24 states and the District of Columbia have legalized cannabis for adult recreational use, allowing people ages 21 and older to purchase, possess, and consume marijuana. 

At least six states have laws that either prohibit employers from testing for marijuana or from rejecting candidates solely on the basis of a positive test: California, Washington, New York, Minnesota, Nevada, and Rhode Island.

“Recently there have been rulings that allow using cannabis as a treatment for workers' compensation injuries and even as a reasonable accommodation for individuals with disabilities,” said James Reidy, an attorney with Sheehan Phinney in Portsmouth, N.H. 

“The [Trump] administration has even initiated a rescheduling of pot under federal drug laws. In short, the genie is out of the bottle, and the trend of legalization continues.”

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The New Jersey Ruling 

This past May, the New Jersey Appellate Division ruled that New Jersey's Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act allows people to sue employers who refuse to hire them, or take adverse action against them, based on their lawful use of cannabis.

While many employers no longer test for marijuana on a pre-employment basis, employers who still test do so because the job in question is a safety-sensitive position.

“When it comes to cannabis use and drug testing, what an employer can and cannot do is largely governed by state law,” said Mark Neuberger, an attorney with Foley & Lardner in Miami. “However, there are some areas of federal regulation found in heavily regulated industries like commercial trucking, nuclear power plants, and airlines.” 

When it comes to safety-sensitive jobs — even in states where recreational marijuana use is legal — marijuana may be “a basis for denying or withdrawing a job offer,” Reidy said. 

Toolkit: Safety and Security 101

Transparency in Hiring  

Is an employer obligated to let the applicant know that the reason for denying an applicant a job is because of the positive drug testing? Or may the employer simply state that they found another candidate, or decided to go in a different direction? 

“Generally, most federal and state regulations recognize that there can be mistakes and require that the employee be provided with the test results and given an opportunity to respond,” Neuberger said. “Commonly, this process of notification and response is conducted through a designated medical review officer.”

Absent such a disclosure requirement, honesty and a direct approach are not only the best policies in life, they make sense in the workplace too, Reidy said. 

Rather than say nothing or rest on another reason that may not be truthful, tell the person why the offer is being withdrawn, Reidy suggested. “I would also be sure the test was proper — accurate and preserved — in case of a challenge. You have to be aware of applicable state laws as to when an applicant or employee can be tested and when employment can be terminated for the first positive test.”

In most cases, a pre-employment drug test occurs only after a conditional offer is made, not before, Mallatt noted. “For this reason … it is more difficult for an employer to take the position that it found another candidate or decided to go in a different direction,” she said. 

Moreover, she said, if a third-party agency processes the test and the employer uses it to deny an applicant employment, under the Fair Credit Reporting Act, the applicant must be provided with a pre-adverse action notice, a copy of the results, and a summary of consumer rights.

Even if a third party isn’t used, some states that have legalized adult use have prohibited or greatly restricted employers from testing employees and job candidates for marijuana because “virtually all of the tests available for use by an employer only measure past marijuana use and cannot … prove the employee is currently impaired,” Neuberger said.

In addition, he said, there’s no uniform chemical standard for what constitutes current impairment from cannabis. 

Generational Differences? 

Is it possible that hiring managers who are older or more conservative than younger managers are more likely to reject job applicants because of off-duty marijuana use? 

“Absolutely,” said Neuberger, who noted that some hiring managers may simply believe that using marijuana is morally wrong.

“I have had many employers tell me, ‘I don’t care if off-duty use is legal; I am opposed to it and don’t want these people working here,’ ” he said. “In some states, they can hold that position; in other states, it would be illegal to do so.”

Mallatt agreed that some managers or executives might be more conservative about marijuana use and less willing to tolerate it than younger managers or workers — but not necessarily because they are older.

“It could be a generational thing, [or] a regional or geographic thing, a religious thing, a political thing, or it could relate to any number of cultural factors,” she said. 

Reidy noted, however, that studies show that many who are young and old are looking to the potential benefits of tetrahydrocannabinol (THC), the main psychoactive compound in cannabis responsible for the “high” sensation, and cannabidiol (CBD). CBD is found in cannabis along with THC but is not psychoactive, which means it does not have brain-altering effects and is often used to manage certain health conditions. 

“With a coming generational shift with [Baby] Boomer retirements and the continued legalization and wider acceptance of cannabis it could be that pot will be treated like alcohol: accepted socially within limits but still not permitted at work, at least not in safety-sensitive positions,” Reidy said.

Dana Wilkie is a freelance journalist in Ormond Beach, Fla.