It’s no secret that legalized medical and recreational marijuana use is on the rise and causing employers to deal with their employees’ rights, if any, that come with it. Recently, an Arizona court found for an employee in a case of discrimination under the Arizona Medical Marijuana Act (AMMA). Whitmire v. Wal-Mart Stores Inc., Case No. 3:17-cv-08108 (D. Ariz. Feb. 7, 2019).
Carol Whitmire worked as a cashier and customer service supervisor for Wal-Mart. After Arizona legalized medical marijuana use, Whitmire obtained an Arizona medical marijuana card so that she could legally use marijuana before bed as a sleep aid and to help her with shoulder arthritis pain. She never used or was impaired by marijuana while at work.
In 2016, Wal-Mart modified its drug and alcohol policy to prohibit employees from reporting to work under the influence of drugs, including medical marijuana. Wal-Mart also required its employees to undergo drug testing in the event of a workplace injury requiring outside medical treatment.
While at work one day, a bag of ice fell on Whitmire’s wrist. A few days later, when she still had pain, Wal-Mart’s personnel coordinator, Debra Vaughn, instructed Whitmire to obtain urgent care. While at urgent care, Whitmire received wrist x-rays and a urine test. Whitmire then informed Wal-Mart, for the first time, that she possessed a medical marijuana card.
The urine test revealed that Whitmire had more than 1000 ng/ml of marijuana metabolites in her system. This amount was apparently “the maximum reading the test can measure for marijuana.” Whitmire, 2019 U.S. Dist. LEXIS 20049, at *6. Whitmire was suspended and ultimately fired, based on Vaughn’s belief that the amount of marijuana metabolites in Whitmire’s system revealed that she was under the influence of marijuana while at work. Whitmire sued, alleging that her termination violated the AMMA and the Arizona Employment Protection Act (AEPA), among other claims.
Under the AMMA and Arizona’s Drug Testing of Employees Act (DTEA), the court found, “an employer cannot be sued for suspending or firing a registered qualifying patient based on the employer’s good faith belief that the employee was impaired by marijuana at work, where that belief is based on a drug test which establishes the presence of metabolites or components of marijuana in sufficient concentration to cause impairment.” Id. at *52.
I’m no expert on marijuana impairment and have no idea how many metabolites must be in a person’s system for him or her to be “impaired.” Last I checked, marijuana impairment is difficult if not impossible to determine accurately by urine test, and a urine test cannot determine how recently an individual used marijuana. (But see this article, which claims that the “pot breathalyzer” test can accurately detect when an individual has smoked marijuana in the last two hours.) Safe to say that marijuana impairment-identifying technology is still trying to catch up with the increase in state laws permitting the drug.
In any event, the court faced the issue of Vaughn’s conclusion that Whitmire was impaired at work based on her drug screen. The court disposed of this conclusion without deciding whether a drug screen is, by itself, able to determine whether an individual is impaired. The court ultimately refused to accept Vaughn’s testimony that Whitmire’s urine sample was “so positive” that it led Vaughn to believe Whitmire was impaired at work because Vaughn’s lack of any scientific or other basis upon which she relied to draw her conclusion disqualified her as a purported expert (whom Wal-Mart failed to disclose) on marijuana impairment. As a result, Wal-Mart was unable to prove that it had a good faith belief that Whitmire was impaired by marijuana at work when it decided to terminate her on this basis.
My takeaway? Employers in Maryland are still generally free to enforce marijuana-free workplace policies. The trickier question, as Whitmire demonstrates, continues to be how exactly employers can determine if and to what extent their employees are under the influence of, or otherwise impaired by, marijuana while at work.