In Whitmire v. Wal-Mart Stores, Inc., a federal court in Arizona ruled that individuals with medical marijuana cards can sue their employers under Arizona’s Medical Marijuana Act (AMMA), regardless of whether the employee tested positive for marijuana.
The court went further in discussing how AMMA and Arizona’s Drug Testing of Employees Act (DTEA) are not at odds. Under AMMA, an employer cannot take action against a qualified patient based on a positive drug test for marijuana unless the patient “used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.” However, DTEA prohibits a cause of action against employers who act in good faith when they believe an employee was impaired while working, while on the premises, or during the hours of employment. According to the court, these can be read together, so that an employee may have a cause of action against an employer if he or she terminated for testing positive for marijuana, unless the employer had a good faith belief that the employee was impaired while at work. A good faith belief of impairment, the court said, is different than a mere positive drug test.
Based on this decision, Arizona employers should shift their focus to impairment, rather than positive drug tests.
There are now five states (Massachusetts, Connecticut, Rhode Island, Delaware, and Arizona) that have specifically ruled in favor of the employee, alleging discrimination based on medical marijuana use. With additional states regularly passing new marijuana laws, there is no doubt more challenges will be brought. Employers should be very familiar not only with their own state’s laws regarding marijuana, but also about any cases brought under them and use that information when reviewing their policies and procedures.
For more information about marijuana laws in your state, please visit our Resource Library