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Judge Rules Against Walmart For Firing Medical Marijuana-licensed Employee

April 5th, 2019 photo/istock/Niloo138 

By Roger Malespin

In what could be a historic case for cannabis freedom, an Arizona Judge has ruled against Walmart for terminating an employee who has a valid medical marijuana license for failing a drug test.  Arizona U.S. District Judge James A. Teilborg ruled that the world’s biggest retailer violated the nondiscrimination provision in the Arizona Medical Marijuana Act (AMMA) because they could not prove that employee Carol Whitmire was impaired on the job.

The conflict goes back to May of 2016, when Whitmire was injured by a falling bag of ice while working. She was taken to urgent care, and, as per Walmart policy, was given a drug test. She told management about her card holder status and returned to work until July, where she was subsequently suspended and later terminated due to failing the drug test. Whitmire takes medical marijuana for arthritis pain and sleep assistance and claims she has never showed up to work impaired.

 Whitmire filed discrimination with the civil rights division of the Arizona Attorney General’s Office and the Equal Employment Opportunity Commission, as well as suing Walmart for wrongful termination. While Judge Teilborg denied Whitmire’s discrimination under the civil right act, he granted partial summary for her case under AMMA. Walmart claims that Whitmire’s termination was legal under the Arizona's Drug Testing of Employees Act (DTEA).

The crux of the matter is the conflict between AMMA and DTEA. A business should and does have the right to enact its own drug policy. However, under the AMMA, Judge Teilborg ruled that Walmart was in the wrong because the person(s) who administered the drug test were unable to discern if Whitmire was impaired while working. Essentially, this case will likely set the precedent that untrained clerks are not qualified to terminate employees based on a failed drug test of someone with a medical marijuana license.

 Walmart told the local publication in a statement that the company works “every day to create and maintain a safe environment for our associates and customers. We are pleased the Court dismissed several of the claims; and we will continue to prepare our case.”

 The effects of this ruling could mean a major shift in the relationship between employers and medical marijuana-using employees across the country. Under the AMMA,  employees “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." In other words, employers will have to be able to prove a sufficient level of metabolites or components of marijuana in the system of an employee specifically at the time of the test and/or their presence during working hours. This expertise is not likely to be provided for on site, as companies are unlikely to hire a medical professional just to be on standby in case they need to administer a drug test.

Of course, the AMMA is an Arizona state law, and each state with medical marijuana has its own specific language regarding medical marijuana and employment. But it's hard to imagine any of them going in the opposite direction because it would be too egregious a violation of personal freedom. It would be akin to firing someone because they are taking prescription medication for any sickness.

 This is great news for the people of Arizona, the cannabis community, and the weight of medical marijuana legality across the country. Expect more cases like this to be in the news sooner than later.