United States: Arizona Federal Judge Enters Judgment For Terminated Employee: High Levels In Positive Drug Test Insufficient To Show Impairment From Marijuana

An Arizona federal district court judge entered judgment against Walmart Inc. for terminating the employment of a woman who had been prescribed medical marijuana because it had not established through expert evidence that the employee was impaired by marijuana at work despite high levels of marijuana in the results of her drug test.  Therefore, the court held plaintiff's termination was contrary to the Arizona Medical Marijuana Act, A.R.S. § 36-2813(B) ("AMMA").

Case Background

InWhitmire v. Walmart Inc., the plaintiff Carol Whitmire had worked at Walmart since 2008, initially as a Cashier and thereafter as a Customer Service Supervisor.  During her employment Walmart had a drug testing policy which expressly stated that employees were prohibited from "[r]eporting to work under the influence of drugs or alcohol, including medical marijuana."  Walmart's policy also required employees to submit to a drug or alcohol test if they suffered a workplace injury that required medical treatment.  Plaintiff was aware of Walmart's drug testing policy and acknowledged her understanding of the policy.

On May 21, 2016, plaintiff reported to Walmart that a bag of ice fell on her wrist while at work, and two days later, she notified Walmart that she experienced continued swelling and pain in her wrist.  On May 24, 2018, around approximately 2 a.m., plaintiff smoked medical marijuana for an alleged non-work related condition prior to going to sleep.  Later that same day at 2 p.m., plaintiff began her scheduled shift at Walmart and reported to human resources that her wrist still hurt.  Plaintiff left her shift because Walmart directed plaintiff to urgent care pursuant to its policy.  Plaintiff received an x-ray of her arm, submitted a urine sample for a post-accident drug test, and then returned to work.  After returning to work, plaintiff advised Walmart for the first time that she possessed a medical marijuana card and provided a copy.

Plaintiff's drug screen tested positive for marijuana metabolites, and Walmart concluded that upon reasonable belief, the high levels of marijuana metabolites recorded in her positive test indicated that she was impaired by marijuana during her shift earlier that same day.  Walmart suspended and eventually terminated plaintiff citing the positive drug test as the reason.

Plaintiff filed a lawsuit in the United States District Court for the District of Arizona asserting that she was terminated and discriminated against in violation of the AMMA and other state laws.  Walmart denied that it wrongfully terminated or discriminated against plaintiff and asserted an affirmative defense that it had "established a policy and implemented a drug testing program" in compliance with the Arizona Drug Testing of Employees Act, A.R.S. § 23-493.06 ("DTEA").

Walmart moved for summary judgment, arguing, among other arguments, that the AMMA did not provide plaintiff with a private cause of action against Walmart.  Additionally, Walmart argued that it was entitled to judgment as a matter of law because it terminated plaintiff based on the results of a drug test taken during her shift, which showed that plaintiff had marijuana metabolites at the highest level the test could record, and which gave Walmart a good faith basis to belief plaintiff was impaired by marijuana during her work shift.  The State of Arizona filed an appearance and an amicus curiae brief.

The District Court of Arizona's Ruling

After considering decisions from numerous other courts that considered whether their respective state medical marijuana laws created an implied cause of action against employers, the District Court held that the AMMA implied a private cause of action because no other remedy for violation of the statute was available.

The District Court next decided whether a genuine issue of material fact existed as to plaintiff's discrimination claims.  The District Court agreed with Walmart that an employer was allowed to establish a policy and drug testing program under the DTEA, which shields an employer from liability for "actions based on the employer's good faith belief" that an employee was working while under the influence of drugs.  Additionally, the court held that, reading the AMMA and the DTEA in conjunction, a registered user of medical marijuana may be considered to be "under the influence of marijuana based solely on the presence of 'metabolites or components of marijuana' that appear in sufficient concentration to cause impairment."

Walmart argued that the level of marijuana metabolites present in plaintiff's drug screen results led Walmart to believe she was impaired at work. Walmart produced a declaration from its Personnel Coordinator in which the coordinator stated that the level of marijuana metabolites found was the "maximum reading the test can measure for marijuana."  However, the court determined that proving impairment based on the results of a drug test was a "scientific matter" which required expert testimony and the Personnel Coordinator did not have the "requisite 'knowledge, skill, experience, training or education' to render opinions regarding the results of the Plaintiff's drug test."  Furthermore, the court held that Walmart was unable to prove that plaintiff's drug test results were "so positive" that it had sufficient reason to believe that plaintiff was impaired while at work without expert testimony to establish impairment.  Therefore, the District Court sua sponte entered judgment in favor of the plaintiff because it determined there was no evidence that plaintiff was impaired at work.

Finally, the court held that plaintiff's disability discrimination claim failed because she was not disabled.  Plaintiff's claim that she was disabled or regarded as disabled because she qualified for a medical marijuana card was insufficient evidence of a disability.  Furthermore, the court followed precedent in the Third and Seventh Circuits and held that the side effects from smoking medical marijuana do not constitute a disability.

Takeaways for Employers

More than 30 states have legalized medical marijuana, and 10 states and Washington D.C. have legalized recreational use.  Yet, marijuana remains a Schedule I controlled substance under federal law, and the legal implications of marijuana medical and recreational marijuana use are ever-evolving.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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