Federal Court Rules that Walmart Firing Violated the Arizona Medical Marijuana Act

A terminated employee’s successful lawsuit underscores the importance of employers exercising caution when making employment decisions on medical marijuana cardholders.

In 2013, an Arizona Walmart employee, Carol Whitmire, informed Walmart that she suffered from chronic pain but that she could continue to perform her work duties as a supervisor, with or without a reasonable accommodation. At about that time, she obtained an Arizona patient medical marijuana card as provided by the Arizona Medical Marijuana Act (AMMA). She smoked medical marijuana as a sleep aid but never brought marijuana to work nor was impaired by it while she was on the job. She had worked at Walmart stores in Show Low and Taylor for several years and was knowledgeable about the company’s drug non-tolerance policy.

In May 2016, Ms. Whitmire was injured while working. Pursuant to the company’s workplace injury policy, Walmart instructed her to visit an urgent care facility and submit to a urine test. She informed her supervisor that she had a medical marijuana patient card for pre-existing chronic pain, and the supervisor made a copy of the card. When Ms. Whitmire tested positive for marijuana metabolites in her urine, Walmart concluded that she was impaired during her shift, suspended her, and ultimately terminated her.

In 2017, Ms. Whitmire sued Walmart in federal court in Phoenix, claiming she was wrongfully terminated and/or discriminated against in violation of the AMMA.[1]

In 2019, the Court ruled in her favor, addressing at least two important issues for Arizona employers.

1. The AMMA provides a private cause of action against an employer.

Judge James A. Teilborg concluded that A.R.S. § 36-2813(B) provides an implied private cause of action to a registered medical marijuana card-holding employee when an employer takes an adverse employment action against the employee on the basis of the employee’s use of medical marijuana.

2. Adopting drug testing policies in accordance with Arizona law does not protect an employer from AMMA discrimination claims.

Walmart argued that, because it had implemented drug testing policies in accordance with Arizona’s Drug Testing of Employees Act (DETA) and had a good faith belief that Ms. Whitmire was impaired on the job, the company was shielded from Ms. Whitmire’s lawsuit.

The AMMA provides:

“[A]n employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon … [a] registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.”[2]

The Court noted that, while the AMMA does not prohibit an employer from disciplining an employee for working under the influence of marijuana, “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.”[3] (emphasis added).

The Court then looked to DETA, which states:

“[N]o cause of action is or may be established for any person against an employer who has established a policy and initiated a testing program in accordance with this article for … [a]ctions based on the employer’s good faith belief that an employee had an impairment while working on the employer’s premises or during hours of employment.”[4]

A “good faith belief” may be based on “the results of a test for the use of alcohol or drugs.” Id. A.R.S. § 23-493(6).

Reading the two statutes together, the Court held that, for an affirmative defense under the DETA on a discrimination claim, Walmart was required to prove:

• it had a good faith belief that Ms. Whitmire was impaired by marijuana at work, and
• her drug test sufficiently established the presence of metabolites or components of marijuana in a scientifically sufficient concentration to cause impairment.

Walmart did not meet this burden; in fact, Walmart admitted that the sole basis for terminating Ms. Whitmire’s employment was her positive drug test. Walmart failed to observe impairment and did not produce expert testimony opining on the state of her impairment on the job. The Court concluded that Walmart could not prove a “good faith basis” to justify employment termination based upon impairment, thereby violating the AMMA’s anti-discrimination mandate.

Takeaways

In the wake of Judge Teilborg’s ruling:

• Employees now have a private cause of action against their employers for AMMA-based discriminatory actions.
• Employers intending to conduct drug testing must (a) adopt written policies and procedures on testing and (b) deliver the policies and procedures to employees before testing commences.
• Employers should not take disciplinary actions against employees based solely on a positive drug test. Employers must also have evidence of impairment on the job.

Employers would be wise to review and update their employment policies and procedures to:

• ensure that drug tests are specific to the type(s) of metabolites causing impairment and their concentration in the employee’s blood;
• present the drug test results to a physician or laboratory for an interpretation of the effect of the marijuana upon the specific employee’s job performance;
• take the statements of co-workers who can observe and gather evidence on performance; and
• document their drug testing, drug usage, discipline and discharge policies and procedures and communicate them to employees prior to implementation.

[1] Carol M. Whitmire v. Wal-Mart Stores Incorporated, No. CV-17-08108 (D. Ariz. Feb. 7, 2019)

[2] A.R.S. § 36-2813(B)(2)

[3] A.R.S. § 36-2814(A)(3)

[4] A.R.S. § 23-493.06(A)(6)