Can an employer terminate the employment of a medical marijuana cardholder who tests positive after a work-related injury? A recent decision tackles this question and represents a first look at the legal issues under Arizona’s medical marijuana law. Employers and their counsel should familiarize themselves with this decision. 

Facts of the Case

In Whitmire v. Wal-Mart Stores Inc., a customer service supervisor sued her employer, Wal-Mart, for various employment law claims, including discrimination under the Arizona Medical Marijuana Act (AMMA) and disability discrimination under the Arizona Civil Rights Act (ACRA). At the time when the employee was hired, she had signed an acknowledgement form confirming her receipt of Wal-Mart’s drug and alcohol policy, which stated that she could be terminated if a drug test evidenced any detectable amount of illegal substances.

After sustaining a work-related injury, the employee was given a drug test for which she tested positive for marijuana metabolites at the highest level the test could record. Even though she was a valid medical marijuana cardholder, her employment was terminated based on the positive drug test. As part of its defense in the lawsuit, Wal-Mart’s personnel coordinator signed a declaration stating that, upon her reasonable belief, the high level of metabolites detected by the drug test indicated the employee was impaired during her shift that day.

Arizona Drug Testing of Employees Act

The Arizona Drug Testing of Employees Act (DTEA) grants employers immunity from liability for taking any adverse actions against employees who receive a positive drug test, or whom the employer reasonably believes have used, possessed, or were impaired by drugs or alcohol while on the employer’s premises or during work hours. The employer’s good-faith belief may be based on the results of a drug test. To avail themselves of immunity under the DTEA, employers must maintain a proper drug testing policy and drug testing program that complies with the DTEA.

Arizona Medical Marijuana Act

Under the AMMA, a qualified patient diagnosed with a debilitating medical condition can obtain a registry card to buy and use medical marijuana. The AMMA’s anti-discrimination provision protects employees who are valid cardholders from being discriminated against (i.e., suspended, fired, etc.) for testing positive for marijuana metabolites, unless they used, possessed, or were impaired at work or during work hours. Employees cannot be considered to be under the influence solely based on the presence of marijuana metabolites in an insufficient concentration to cause impairment.

Harmonizing the AMMA and DTEA

While the anti-discrimination provision of the AMMA and the employer immunity provision under the DTEA appear to be at odds, the Court in Whitmire v. Wal-Mart Stores Inc. reconciled the two statutes as follows:

• “An employer cannot be sued for firing a registered qualifying patient based on the employer’s good-faith belief that the employee was impaired by marijuana at work, where that belief is based on a drug test that sufficiently establishing the presence of ‘metabolites or components of marijuana’ sufficient to cause impairment.’”

Ultimately, because Wal-Mart did not present any evidence establishing that the employee was impaired at work, such as scientific expert testimony opining on the sufficiency of the metabolite levels revealed by the employee’s drug test, or evidence of any symptoms of impairment (such as affected speech, walking, coordination, or irrational or unusual behavior) the Court ultimately ruled in favor of the employee on her discrimination claim under the AMMA.

Disability Under the Arizona Civil Rights Act

In addition to her claim under the AMMA, although the employee was not disabled, she brought a disability discrimination claim under the ACRA alleging Wal-Mart was liable because it regarded her as being disabled based on the impairing effects of her medical marijuana use. Because the effects on the employee were temporary and minor, and effective alternatives to using medicinal marijuana that produced no such effects were available, the Court concluded that the impairing effects of medical marijuana on the employee did not render her disabled under the ACRA. 

Takeaways for Employers

• Employers should consider revisiting their drug and alcohol policy, as well as their testing policy to ensure they are properly availing themselves of the protections under the DTEA and AMMA and avoiding liability for discrimination claims under the AMMA.
• A positive drug test for marijuana, alone, may be insufficient to insulate an employer from liability under the AMMA and establish a good-faith belief that an employee was impaired at work. If a termination is based on a positive drug test, employers should be prepared to hire an expert to prove that the presence of marijuana metabolites sufficiently caused the employee to be impaired at work, or be able to produce other evidence of impairment.
• Managers and supervisors should be trained on recognizing and documenting symptoms of impairment.
• Employers should also consider federal law, and those with a national presence should consider the medical marijuana laws in each state where they operate as many states’ laws differ from Arizona’s requirements.
• While the effects of medical marijuana use may be insufficient to establish a “regarded-as” claim of disability discrimination, employers should continue to be mindful of whether any underlying medical conditions the employee has are protected under state and federal sick time, medical leave, and disability laws.