By Lindsay H.S. Hesketh & Matthew A. Hesketh
A medical marijuana cardholder and her employer went to court. The employer had a policy prohibiting employees from working under the influence of marijuana and fired the cardholder when her drug test (taken after a workplace accident) showed the presence of marijuana metabolites. The District Court of Arizona made findings on two novel issues under the Arizona Medical Marijuana Act (“AMMA”): (1) AMMA creates a private cause of action for discrimination claims; and (2) Arizona’s Drug Testing of Employees Act (“DTEA”) permits employers to terminate an employee based on the results of a drug test, but only if test results showed a concentration of metabolites sufficient to cause impairment at work. With those decisions in hand, the court – on its on motion – granted the med-mar cardholder summary judgment.
Private cause of action. AMMA prohibits employers from discriminating against a cardholder for testing positive for marijuana metabolites unless the cardholder used, possessed, or was actually impaired by marijuana on the job. Impairment on the job cannot be presumed just because some marijuana metabolites are present in a sample; there must be such a high level of metabolites that the employee must have been impaired. Relying on case law interpreting similar provisions in Connecticut and Delaware, the court found that AMMA’s anti-discrimination provision implied that employees could sue over illegal discrimination.
Harmonizing the DTEA and AMMA. The DTEA, enacted after AMMA, allows employers with a proper drug testing policy to act on their “good faith belief” that an employee was impaired on the job. That “good faith belief” may be based on, among other things, the results of a drug test. But the court interpreted the DTEA to be consistent with AMMA. Thus, the “good faith belief” must be based on a positive drug test that shows such a concentration of marijuana metabolites that it establishes the employee was impaired on the job. Because the defendant in this case did not present expert testimony concerning whether the plaintiff’s test results met that threshold, the court turned around and granted summary judgment for the employee.
Arizona employers with DTEA-compliant drug testing policies still have to be cautious. If they take adverse employment action against an employee who possesses a medical marijuana card and who tests positive for marijuana metabolites, they have to prove the metabolites were the right kind, and were present in a high enough concentration, to cause impairment. According to the court, this proof requires a scientific expert.
To read the full decision, see Whitmire v. Wal-Mart Stores Inc., No. CV-17-08108 (D. Ariz. Feb. 7, 2019).