“A recent case out of Arizona demonstrates that drug testing employees for marijuana use, and taking disciplinary action on the results, remains a complex issue in the many states which have legalized medical marijuana use. State statutes may (or may not) provide employee protections for off-duty use of medical marijuana or for status as a medical marijuana user, or might require employers to accommodate medical marijuana use. As the case below illustrates, Arizona’s state statute even protects employees from discipline on the basis of a positive test.

In Whitmire v. Wal-Mart Stores Inc., No. CV-17-08108-PCT-JAT, 2019 WL 479842 (D. Ariz. Feb. 7, 2019), the plaintiff, Ms. Whitmire, was a longtime employee of Wal-Mart who obtained a medical marijuana registry card in 2013. Wal-Mart maintained a policy prohibiting employees from working under the influence of medical marijuana. In 2016, Ms. Whitmire injured her wrist while working but did not seek medical attention. A few days later, Ms. Whitmire smoked medical marijuana prior to going to sleep. When Ms. Whitmire arrived at work the next day, she notified Wal-Mart that her wrist was not getting better and was sent to a clinic to have her wrist examined and to take a post-accident drug test. Ms. Whitmire’s drug test was positive for marijuana, and Wal-Mart terminated her employment. She then sued the company, asserting, among other things, a claim of discrimination in violation of the Arizona Medical Marijuana Act (“AMMA”).

The AMMA provides significant protections to employees: it prohibits any discrimination against an employee based solely on status as a registered medical marijuana cardholder, and also forbids termination of an employee exclusively because of a “positive drug test for marijuana components or metabolites.” However, the AMMA does not afford protection to employees who use, possess, or are under the influence of marijuana while at work. Ms. Whitmire argued that Wal-Mart discriminated against her in violation of the AMMA by terminating her based on her positive drug test, even though she had not been impaired while at work. In opposition, Wal-Mart relied on testimony provided by its Personnel Coordinator that Ms. Whitmire’s test result showed such high levels of marijuana metabolites that she necessarily must have been under the influence at work. Wal-Mart also argued that even if Ms. Whitmire was not impaired on the job, it had a good-faith belief that she was under the influence based on the results of her drug screen, and therefore was entitled to an affirmative defense to the claim of discrimination.

The trial court rejected Wal-Mart’s arguments and ruled in favor of Ms. Whitmire. The court first held that, contrary to Wal-Mart’s arguments, its Personnel Coordinator was not an expert able to testify, based solely on the test results that Ms. Whitmire was under the influence of marijuana while at work. Accordingly, the court found that Wal-Mart had provided no evidence of on-the-job impairment. The court did appear to acknowledge, however, that if Wal-Mart had provided an appropriate expert to testify that the drug test revealed impairment “in a scientifically sufficient concentration[,]” it would have considered such evidence.

Wal-Mart was unable to establish that Ms. Whitmire had been impaired on the job through testimony by Wal-Mart’s Personnel Coordinator and presented no other evidence that could have led it to believe Ms. Whitmire was under the influence of marijuana while at work. The court, therefore, determined that Wal-Mart had discriminated against Ms. Whitmire based solely on the positive result for marijuana, in direct violation of the AMMA. This case, along with cases decided in other jurisdictions, highlights how there are no easy answers when it comes to medical marijuana and employment. Among other things, courts in some states have held that under disability laws, off-duty medical marijuana use must be tolerated as a reasonable accommodation, and employees with conditions “best treated by medical marijuana” must not be disadvantaged under a testing policy. Courts have also held that an employer cannot use a positive test result from a valid medical marijuana user as a shield for other discrimination and may still be held liable where evidence for such discrimination exists. Notably, courts in multiple states have specifically ruled that federal law classifying medical marijuana as illegal does not protect employers who violate state laws.

Considering the current legal landscape, employers must carefully review state laws where they employ individuals. Among other things, employers must determine the specific protections provided to employees related to authorized medical marijuana use under disability or employment discrimination laws, or the medical marijuana statutes themselves. Employers must also train supervisors to recognize and document signs of actual impairment in the workplace, such as anxiety, poor muscle control, delayed reaction times and red eyes, as well as failure to adequately perform job functions. The physical signs, combined with poor performance, may provide sufficient justification for an employment action whether or not the employee is tested for marijuana use. However, prior to taking action, employers should consult with their employment counsel to review their policies regarding medical marijuana use, the employee’s duties and performance, the evidence of actual impairment, and the applicable state laws.

Lastly, given the current trend, employers should consider whether there is a need to modify their drug and alcohol policies to permit off-duty medical marijuana usage, in limited, appropriate circumstances, even if not in a state with a clear rule regarding such usage.”

As laws and workforce trends continue to evolve, changing policies, and legal rulings continue to be a major pain point for organizations. At Creative Business Resources, our Human Resource and Compliance solutions keep every client up-to-date, informed, and provide policy updates and modifications. Our HR experts can help your organization remain compliant with anti-discrimination, and training requirements and other applicable HR laws. Contact us today at 602-200-8500 or https://cbri.com/contact/ to speak with one of our consultants!

This Employment Law Client Alert is a publication of Kutak Rock LLP. This publication is intended to notify our clients and friends of current events and provide general information about labor and employment issues. This Kutak Rock LLP Employment Law Client Alert is not intended, nor should it be used, as specific legal advice, and it does not create an attorney-client relationship.

Source: ©Kutak Rock LLP 2019

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