On April 25, 2023, in Henson v. Daimler Truck North America LLC, Civil Case No. 22-cv-6479 (RBK/MJS), United States District Judge Robert B. Kugler ruled that the wrongful termination suit filed by an employee who was fired after testing positive for cannabis may proceed. Judge Kugler, however, determined that the New Jersey Conscientious Employee Protection Act (“CEPA”) whistleblower claim should be dismissed due to the lack of a causal nexus between the employee’s communications regarding New Jersey drug testing law and his firing.
Plaintiff Robert Henson (“Henson”) was employed by Daimler Truck North America LLC (“Daimler”) when he was involved in an accident while operating a company vehicle in November 2021. Daimler’s company policy required that a drug test be administered after workplace accidents. Henson informed his manager that he had used cannabis weeks before the incident, so he anticipated that he would test positive for cannabis in his system. The test did, in fact, come back positive. Henson was immediately suspended without pay.
While he was suspended, Henson learned about the then-recently enacted Cannabis Regulatory, Enforcement, Assistance, and Marketplace Modernization Act (“CREAMMA” or the “Act”) in New Jersey. As we previously reported, CREAMMA provides various employment protections for employees who use cannabis recreationally and imposes strenuous requirements on New Jersey employers who conduct drug testing for the presence of cannabis in an individual’s system. While CREAMMA allows employers to drug test employees after a workplace accident, the Act does not allow employers to take adverse employment actions against employees based solely on a positive drug test.