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In a recent case, Whitmire v. Wal-Mart Stores Inc. (D. Ariz., 2019), the District Court of Arizona held that an employee who obtained a medical marijuana card has a viable claim for wrongful termination when the employer has terminated the employment for resulting positive to a drug screen test, without proving through expert testimony that the percentage of marijuana detected impaired the employee’s ability to work.

In Whitmire, Plaintiff was employed by Wal-Mart and obtained a marijuana medical card, which she maintained during the course of her employment. Wal-Mart had a policy requiring employees to submit to a drug or alcohol test if they suffer a workplace injury. Following an injury suffered while working, Plaintiff underwent a drug test and resulted positive for marijuana metabolites. Based on the result of the drug screen, Wal-Mart terminated the employee.

Plaintiff sued Wal-Mart in federal court alleging, among other things, wrongful termination in violation of the Arizona Medical Marijuana Act (the “AMMA”) – A.R.S. § 36-2813(B)(2), which 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.”.

Wal-Mart filed a motion for summary judgment alleging that employee’s claim was barred by the Drug Testing of Employee Act (the “DTEA”) – A.R.S. § 23-493.06(A)(6), which provides, in relevant part, that “No 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 while on the employer’s premises or during hours of employment.

Wal-Mart further argued that the termination of the employee was in compliance with the law because the DTEA states that 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.“.

The District Court rejected Wal-Mart’s first argument and observed that, while the AMMA does not “prohibit [] an employer from disciplining an employee for . . . working while under the influence of marijuana,” (see A.R.S.§ 36-2814(B)), “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,” (see A.R.S. § 36-2814(A)(3)).

In rejecting Wal-Mart’s second argument, the Court found that “… proving impairment based on the results of a drug screen is a scientific matter which requires expert testimony. Without expert testimony establishing that Plaintiff’s drug screen shows marijuana metabolites or components in a sufficient concentration to cause impairment, Defendant is unable to prove that Plaintiff’s drug screen gave it a “good faith basis” to believe Plaintiff was impaired at work …”.

Therefore, the Federal Court held that a registered qualifying patient cannot be suspended or fired based on the employer’s good faith belief that the employee was impaired by marijuana at work, where that belief is solely based on a drug test which establishes the presence of metabolites or components of marijuana in sufficient concentration to cause impairment, without any scientific support to prove such impairment.

In such scenario, an employee has viable private cause of action against the employer for wrongful termination in violation of the AMMA.

On the other side, employers should review their drug policies making sure to accompany drug test results for marijuana with adequate scientific support to prove impairment before terminating an employee.

If you believe this decision affects your situation, contact our firm for a consultation. We will be able to advise about your position and any available remedies.