New AZ Court Ruling - Employee Can Sue for Discrimination as a Marijuana Card Holder

Until now, there was no clear guidance on whether the Arizona Medical Marijuana Act (“AMMA”), A.R.S. § 36-2813(B), creates a private cause of action for medical marijuana users against their employers. The answer now is a definitive yes from one Arizona district court. In a matter of first impression, Whitmire v. Wal-Mart Stores Inc., 2019 WL 479842 (D. Ariz. Feb. 7, 2019), found not only that such a cause of action exists under AMMA, but also that the employer in this case violated AMMA's discrimination provision as a matter of law when it terminated an employee for a positive drug test that did not prove actual impairment during working hours.

The Court Case

In Whitmire, the plaintiff, a Wal-Mart customer service supervisor, injured her wrist while at work. Upon reporting the injury, Wal-Mart asked Whitmire to submit to a drug test, which it requires for all on-the-job injuries. At the time the test was ordered, Wal-Mart did not know that Whitmire was a “Cardholder” under AMMA (i.e. she had an Arizona-issued medical marijuana card) or that she had used medical marijuana the night before as per her custom. Whitmire disclosed these facts contemporaneous with her drug screen, which she understandably failed due to the presence of marijuana metabolites in her urine. Wal-Mart subsequently terminated Whitmire for failing the drug test, pursuant to its policy requiring termination when “any detectable amount” of illegal drugs is found in an employee's body.

Whitmire filed a lawsuit in the District Court of Arizona claiming that Wal-Mart violated AMMA by discriminating against her on account of her use of medical marijuana. Faced with the preliminary question of whether AMMA's employment discrimination provision permits a private cause of action against employers, the court sorted through the statute's language, its legislative history and how other states have interpreted similar provisions. The court concluded that the Arizona legislature did intend to create a private cause of action against employers under this law. Specifically, the court concluded that employees who are prescribed and use medical marijuana are permitted to sue their employers if the employer takes an adverse action in violation of the law.

With this point decided, the court next sorted through the seemingly inconsistent provisions in the AMMA and the Drug Testing of Employees Act (“DETA”), A.R.S. § 23-493.06, regarding when an employer can terminate a registered medical marijuana patient. AMMA provides that “an 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.” A.R.S. § 36-2813(B)(2). The AMMA also provides, however, 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,” id. § 36-2814(A)(3). Meanwhile, DETA protects employers from legal action when the employer acts based on a "good faith belief" that an employee was impaired: (i) while working; (ii) while on the employer’s premises; or (iii) during the hours of employment. A.R.S. § 23-493.06(A)(6). A “good faith belief" may be based on any number of things, including the “[r]esults of a test for the use of alcohol or drugs.” Id. § 23-493.06.

Reconciling these seemingly conflicting provisions, the court found that an employer has an affirmative defense to an AMMA lawsuit when it has a good faith belief that the employee was impaired during working hours (or on the employer's premises) and a drug test (or other evidence) corroborates that good faith belief. Importantly, a drug test can only be relied upon to corroborate this good faith belief when the drug test proves the employee was actually impaired during working hours. If the drug test only proves recent use - and not actual impairment in the workplace - it cannot be relied upon to prove the good faith element necessary for this affirmative defense.

As Wal-Mart relied upon a drug test that only proved recent use and not actual impairment in the workplace, the court ruled it could not invoke the DETA affirmative defense as a matter of law and granted summary judgment for the employee. Wal-Mart did not support its termination decision with documented observation or anything else that might have supported a good faith belief.

Important Takeaways

Looking at the takeaways from this decision, it is important to note that it has no impact on an employer's ability to act where a medical marijuana card holder has used or possessed marijuana in the workplace. Nor does it have any impact on other methods that might be used to prove a good faith belief of actual impairment in the workplace, such as documented observation. Rather, it holds simply that a drug test that only proves recent use cannot be relied upon to prove a good faith belief of impairment in the workplace.

What Arizona Employers Should Consider

Arizona employers should take the following steps in light of this decision:

• Legal review of any policies regarding drug use in the workplace, medical marijuana and drug testing and, if necessary, updating policies to comply with AMMA and DETA.
• Speak with your drug-testing provider regarding the limits of your testing methodology and whether there are options to prove actual impairment in the workplace.
• Keep your eyes open for new technologies on the horizon that may solve the testing problem, but are not yet widely available (e.g. oral fluid testing).
• Train your management team on how to properly observe and document employees that are acting in an impaired manner in order to support a good faith belief the employee was impaired in the workplace.

If you have any questions about this decision or any matter related to medical marijuana use in the workplace or employee drug-testing, please contact your Quarles & Brady attorney or:

• Gary Clark: 312-715-5040 / gary.clark@quarles.com