By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On March 22, 2019, the U.S. District Court in Arizona granted summary judgment on anti-discrimination claims in favor of the plaintiff former employee and against Walmart under Arizona’s medical marijuana statute. The plaintiff, a former employee of Walmart, had been terminated after allegedly testing positive for marijuana.
This case is significant because as more states are adopting medical marijuana laws, this represents the growing risks to employers who engage in adverse employment actions against medical marijuana users. Furthermore, since the decision was in federal court, it is even more significant. In this case, Arizona employers gained some much needed guidance for navigating Arizona’s Medical Marijuana Act (AMMA).
The court held that individuals with medical marijuana cards can sue their employers under the AMMA if action is taken against them merely because there is a positive drug test for the presence of marijuana. Also, employers cannot avoid liability by merely showing the employee tested positive because he or she had marijuana metabolites in their system.
The Case: Whitmire v. Wal-Mart, Inc.
In Whitmire v. Wal-Mart Inc., a former employee and qualified patient under the AMMA, injured her wrist while at work. Two days later, she notified human resources of pain and swelling in her injured wrist. At that time, her supervisor instructed her to seek medical treatment. Because she had used marijuana roughly twelve hours before her shift to help her sleep, the drug test was positive for marijuana.
As a result of that drug test alone, Wal-Mart terminated her employment. She then filed a lawsuit against Wal-Mart, alleging that it had violated the AMMA by discriminating against her for her use of medical marijuana. The plaintiff argued that Walmart’s admitted policy of firing regardless of whether the employee possesses a medical marijuana card and regardless of the level detected constituted a complete disregard for the AMMA’s anti-discrimination provisions.
Violating Arizona’s Medical Marijuana Act (AMMA).
The court agreed with the plaintiff and ruled that, without having produced any evidence that the plaintiff “used, possessed or was impaired by marijuana,” Walmart had discriminated against her in violation of the AMMA. Furthermore, by suspending and then terminating her solely based on her positive drug screen and in the absence of expert testimony, the court granted summary judgment in favor of the plaintiff on her AMMA discrimination claim.
It should be remembered, however, that in this case, Arizona has a provision in its medical marijuana law that prohibits discrimination against legitimate users. Every state may not have this. If your state does not have a similar provision in your state’s medical marijuana law, you should lobby for an amendment to include one.
To read the court’s order in this case, click here.
To read about a similar case of employment discrimination dealing with marijuana use, read one of my recent blogs here.
To read about marijuana workplace discrimination in other states such as Colorado, where recreational use is legal, click here to read one of our prior blogs on our Colorado Law Blog.
Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.
The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.
To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
Peabody, Daniel. “A New Ruling on the Arizona Medical Marijuana Act: Did Your Drug Testing Policy Just Go Up in Smoke?” JD Supra. (February 21, 2019). Web.
Mooreman, William; Samolis, Alicia. “Employer Liability For Medical Marijuana Bias Is Growing.” Law360. (March 22, 2019). Web.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
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