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Arizona Court Holds Firing Medical Marijuana User

03/07/19

Author: ADP Admin/Monday, March 4, 2019/Categories: Arizona

Arizona Court Holds Firing Medical Marijuana User for Testing Positive for Marijuana Violated the Arizona Medical Marijuana Act Overview: A District Judge in the District of Arizona held that Walmart Inc. violated the non-discrimination provisions of the Arizona Medical Marijuana Act (“AMMA”) when it fired a medical marijuana cardholder for testing positive on a routine post-accident drug test. Whitmire v. Walmart Stores, Inc., No. 17-cv-08108 (D. Ariz. Feb. 7, 2019).

Effective Date: February 7, 2019

Details:
Walmart ordered Plaintiff Carol Whitmire to undergo a mandatory post-accident drug test after she sought medical treatment for an on-the-job injury. Although Walmart had no reason to suspect that Whitmire was impaired at work or otherwise caused or contributed to the accident (a bag of ice fell on her wrist), the Company’s drug and alcohol testing policy required drug tests for all injuries resulting in off-site medical treatment. Walmart fired Whitmire – who was not in a safety-sensitive position – after she tested positive for marijuana metabolites, at which time Whitmire disclosed that she was a medical marijuana cardholder.

The AMMA prohibits employers from discriminating against applicants and employers based on their status as qualifying medical marijuana patients, and provides further that “a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.” Though Walmart argued that the level of marijuana metabolites in Whitmire’s urine sample was so high that the results alone were sufficient to establish Whitmire was impaired, the Company provided no expert evidence to support this conclusion, and admitted that it had no other basis to believe that Whitmire was impaired by marijuana at work or at the time of the accident. This was fatal to the Company’s defense, as the Court held that Walmart was “unable to provide that [Whitmire’s] drug screen gave it a ‘good faith basis’ to believe [Whitmire] was impaired at work.”

Ultimately, the Court held, in a case of first impression, that the AMMA provides for a private right of action and that Walmart’s decision to fire Whitmire without any objective basis to conclude that she was impaired by marijuana violated the AMMA. The Court, which chided Walmart for its “complete and bright line disregard” for the AMMA’s anti-discrimination protections, granted summary judgment in favor of the employee, and will hold a trial in the coming weeks to determine Whitmire’s damages.

The decision underlies the risks in discharging a medical marijuana user in Arizona (or other states with similar anti-discrimination protections) without a justifiable basis – beyond just a positive test result – to conclude that the employee was under the influence of marijuana while at work.

Action Required: As always, please be sure to contact your dedicated service professional with any questions.

*Produced in partnership with Jackson Lewis P.C.

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