States That Have Legalized Medical Marijuana

An Arizona federal district court judge entered judgment against Walmart Inc. for terminating the employment of a woman who had been prescribed medical marijuana because it had not established through expert evidence that the employee was impaired by marijuana at work despite high levels of marijuana in the results of her drug test.  Therefore, the court held plaintiff’s termination was contrary to the Arizona Medical Marijuana Act, A.R.S. § 36-2813(B) (“AMMA”).

Case Background

In Whitmire v. Walmart Inc., the plaintiff Carol Whitmire had worked at Walmart since 2008, initially as a Cashier and thereafter as a Customer Service Supervisor.  During her employment Walmart had a drug testing policy which expressly stated that employees were prohibited from “[r]eporting to work under the influence of drugs or alcohol, including medical marijuana.”  Walmart’s policy also required employees to submit to a drug or alcohol test if they suffered a workplace injury that required medical treatment.  Plaintiff was aware of Walmart’s drug testing policy and acknowledged her understanding of the policy.

On May 21, 2016, plaintiff reported to Walmart that a bag of ice fell on her wrist while at work, and two days later, she notified Walmart that she experienced continued swelling and pain in her wrist.  On May 24, 2018, around approximately 2 a.m., plaintiff smoked medical marijuana for an alleged non-work related condition prior to going to sleep.  Later that same day at 2 p.m., plaintiff began her scheduled shift at Walmart and reported to human resources that her wrist still hurt.  Plaintiff left her shift because Walmart directed plaintiff to urgent care pursuant to its policy.  Plaintiff received an x-ray of her arm, submitted a urine sample for a post-accident drug test, and then returned to work.  After returning to work, plaintiff advised Walmart for the first time that she possessed a medical marijuana card and provided a copy.

Plaintiff’s drug screen tested positive for marijuana metabolites, and Walmart concluded that upon reasonable belief, the high levels of marijuana metabolites recorded in her positive test indicated that she was impaired by marijuana during her shift earlier that same day.  Walmart suspended and eventually terminated plaintiff citing the positive drug test as the reason.

Plaintiff filed a lawsuit in the United States District Court for the District of Arizona asserting that she was terminated and discriminated against in violation of the AMMA and other state laws.  Walmart denied that it wrongfully terminated or discriminated against plaintiff and asserted an affirmative defense that it had “established a policy and implemented a drug testing program” in compliance with the Arizona Drug Testing of Employees Act, A.R.S. § 23-493.06 (“DTEA”).

Walmart moved for summary judgment, arguing, among other arguments, that the AMMA did not provide plaintiff with a private cause of action against Walmart.  Additionally, Walmart argued that it was entitled to judgment as a matter of law because it terminated plaintiff based on the results of a drug test taken during her shift, which showed that plaintiff had marijuana metabolites at the highest level the test could record, and which gave Walmart a good faith basis to belief plaintiff was impaired by marijuana during her work shift.  The State of Arizona filed an appearance and an amicus curiae brief.

The District Court of Arizona’s Ruling

After considering decisions from numerous other courts that considered whether their respective state medical marijuana laws created an implied cause of action against employers, the District Court held that the AMMA implied a private cause of action because no other remedy for violation of the statute was available.

The District Court next decided whether a genuine issue of material fact existed as to plaintiff’s discrimination claims.  The District Court agreed with Walmart that an employer was allowed to establish a policy and drug testing program under the DTEA, which shields an employer from liability for “actions based on the employer’s good faith belief” that an employee was working while under the influence of drugs.  Additionally, the court held that, reading the AMMA and the DTEA in conjunction, a registered user of medical marijuana may be considered to be “under the influence of marijuana based solely on the presence of ‘metabolites or components of marijuana’ that appear in sufficient concentration to cause impairment.”

Walmart argued that the level of marijuana metabolites present in plaintiff’s drug screen results led Walmart to believe she was impaired at work. Walmart produced a declaration from its Personnel Coordinator in which the coordinator stated that the level of marijuana metabolites found was the “maximum reading the test can measure for marijuana.”  However, the court determined that proving impairment based on the results of a drug test was a “scientific matter” which required expert testimony and the Personnel Coordinator did not have the “requisite ‘knowledge, skill, experience, training or education’ to render opinions regarding the results of the Plaintiff’s drug test.”  Furthermore, the court held that Walmart was unable to prove that plaintiff’s drug test results were “so positive” that it had sufficient reason to believe that plaintiff was impaired while at work without expert testimony to establish impairment.  Therefore, the District Court sua sponte entered judgment in favor of the plaintiff because it determined there was no evidence that plaintiff was impaired at work.

Finally, the court held that plaintiff’s disability discrimination claim failed because she was not disabled.  Plaintiff’s claim that she was disabled or regarded as disabled because she qualified for a medical marijuana card was insufficient evidence of a disability.  Furthermore, the court followed precedent in the Third and Seventh Circuits and held that the side effects from smoking medical marijuana do not constitute a disability.

Takeaways for Employers

More than 30 states have legalized medical marijuana, and 10 states and Washington D.C. have legalized recreational use.  Yet, marijuana remains a Schedule I controlled substance under federal law, and the legal implications of marijuana medical and recreational marijuana use are ever-evolving.  If you have any questions regarding this area or need assistance evaluating personnel decisions relating to employees and marijuana use, please contact the author, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Cannabis Law Practice.

Attorney General Jeff Sessions is in the news for two reasons today: he’s testifying before the Senate Intelligence Committee on his possible links to Russia and a letter he wrote to Congress indicating his disapproval of the Rohrabacher-Farr Amendment has surfaced.

Last month we reported that Congress extended the Rohrabacher-Farr Amendment.  No sooner was this extension passed,  but Sessions wrote to Congress seeking its repeal.   As many readers know, the Amendment prohibits the Justice Department from using federal funds to prevent states from implementing their own medical marijuana laws.  It is, in essence, a victory for states’ rights, in the sense that they can decide whether to make medical marijuana legal, without fear of federal government interference.

Yesterday massroots.com, and today The Washington Post reported that in May, Sessions wrote to Congress stating that “it would be unwise for Congress to restrict the discretion of the Department [of Justice] to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long term uptick in violent crime.”

Of course, the “historic drug epidemic” to which Sessions refers has nothing to do with cannabis, but involves opiates, and, according to the Washington Post, a growing body of research shows that opiate overdoses decrease in states in which medical marijuana is legal.  Sessions also wrote that “[t]he Department must be in a position to use all laws available to combat the transnational drug organizations and dangerous traffickers who threaten American lives.”  It is difficult to understand how Rohrabacher-Farr prevents the federal government from enforcing the Controlled Substances Act against those engaged in trafficking in drugs across state lines.

Sessions’ position is contrary to that of the President who expressed support for medical marijuana laws during his campaign.  However, over the past several months there have been a number of mixed signals from the Administration regarding enforcement of the federal prohibition on the possession and sale of cannabis.  These mixed signals have created tremendous uncertainty in all segments of the cannabis industry, but it is hard to believe that the Administration really intends to disrupt what has become a multi-billion dollar industry.

 

 

As we enter a new year, and approach the one year anniversary of New York’s Medical Marijuana Program,  we are given an opportunity to look back and reflect on the performance of the program, and what lies ahead.

In some ways, the program has been vastly successful.  As of January 3, 2016, 807 practitioners have registered for the Medical Marijuana Program, and 12,067 patients have been certified by their practitioners.

However, the Medical Marijuana Program has also been criticized for its limited access, high prices, and the regulatory hurdles which have discouraged doctors and patients from participating, and have hurt medical marijuana companies trying to grow their business.  For instance, some patients have to travel upwards of three hours to receive the required medication.  Further, many companies have invested in large grow spaces, but due to the restrictive nature of the law, demand has remained low.  Consequently, these companies are using only a marginal fraction of their overall capacity for growth.

Continue Reading New York is Lighting A Fire Under its Budding Cannabis Industry

As we know, many states have now legalized the sale and use of marijuana for medical purposes.  Often, advocates of medical marijuana have worked for many years in order to see their state’s voters or legislature make access to cannabis the law of the land.  This doesn’t mean that patients will be able to purchase marijuana any time soon, however.  The wait can be years.

Continue Reading Are We There Yet? The Wait Between Legalization and Availability of Medical Marijuana

Since Pennsylvania Senate Bill SB3 passed on April 17 (codified as P.L. 84, No. 16, otherwise known as “Act 16”) new issues regarding pot use have sparked.  As discussed in my previous post, the Disciplinary Board of the Supreme Court of Pennsylvania proposed amendments to PA Rule of Professional Conduct 1.2 to contemplate legal advice rendered concerning the legalized use of medical marijuana. Though the comment period ended on June 3, it appears that the Disciplinary Board has not yet adopted the amendments to the rule.  We will provide updated information as it becomes available.
In addition to the proposed changes to PA legal ethics rules, certain other developments have arisen since April.  Perhaps the most exciting update is that medical marijuana patients under the age of 18 now have access to the drug, pursuant to the first temporary regulation published under Act 16.  Pennsylvania Health Secretary Dr. Karen Murphy indicated the legislature’s intent in assisting ailing children through the passage of the law, and as such, patients under the age of 18 are the first in line to reap the benefits of the law.

Continue Reading PA Residents Keep Their Buzz Going: Pot Law Developments Continue to Spark Interest

Last week, Illinois courts and lawmakers changed the  course of the administration of medical marijuana for state residents with debilitating conditions and diseases. First, on June 28, 2016, Associate Judge Neil H. Cohen of Cook County Chancery Court ruled that the Director of the Illinois Department of Public Health (“IDPH”), Director Neil D. Shah, illegally denied a Petition to include Post-Traumatic Stress Disorder (“PTSD”) as a debilitating medical condition within the Compassionate Use of Medical Cannabis Pilot Program (“Program”). Plaintiff Daniel Paul Jabs, a veteran of the Iraq War, suffered from PTSD and had symptoms of “‘panic attacks, flashbacks, nightmares, intrusive memories, hyper-sensitivity to light and noise, over reactive startle responses,’ as well as isolation, mood fluctuations, anxiety and insomnia.” After providing the requisite documents at a public hearing before an Advisory Board, the board members unanimously voted to add PTSD and ten other medical conditions as authorized debilitating medical conditions under the Program.

Continue Reading A One-Two Punch: Jabs v. IDPH and SB 10 Passage Changing the Direction of Medical Marijuana in Illinois

Welcome back to The Week in Weed, your weekly look at all things legalized marijuana.

 

The cannabis industry is becoming increasingly attractive to investors, who are pumping more money than ever into marijuana companies.  One indication of the increased activity: In 2015, cannabis companies secured more than $215 million in venture capital, according to data from the investment research firm CB Insights.

 

In a sign of marijuana’s growing normalization in Canada, two major life insurance companies have decided to treat cannabis users as non-smokers, reversing a long-standing policy and offering many of them far cheaper premiums.

 

A bill authorizing physicians to prescribe marijuana derivatives to treat a host of health conditions was signed into law this afternoon by Ohio Gov. John Kasich.

 

Something we missed that everyone needs to read?  Let us know in the comments.

Welcome back to The Week in Weed; here’s your Friday update on all things cannabis.

Long-term marijuana use is not associated with a raft of physical health problems, according to a new study, with one surprising exception: gum disease.

Ohio appears poised to become the newest state to approve a medical marijuana program, which could create one of the largest MMJ industries in the nation with patient numbers in the hundreds of thousands and annual sales in the hundreds of millions of dollars.

The federal government just softened its stance on a very specific use of medical marijuana.

Something we missed that everyone needs to know?  Give us a shout in the comments.

Welcome back to The Week in Weed, your weekly source for news about legalized marijuana.

He’s a medical pot advocate with arthritis.  He’s also the first Congressman to admit to marijuana use while in office.

 

A medical marijuana legalization bill has been sent to Ohio Governor John Kasich in an effort by state lawmakers to offset support for a proposed fall ballot measure.  Gov. Kasich has not indicated whether he will sign the legislation or not.

 

Public cannabis-based companies seeking to list on a national exchange suffered a setback this week when Nasdaq rejected a listing request by MassRoots, fearing it would “aid in the use and dealing of an illegal substance.”

 

It’s not that the Teamsters are opposed to legalizing marijuana use, but they are concerned about how the transportation and distribution of the drug would be managed under the proposal that goes to the state’s voters in November.

 

Anything we missed?  Let us know in the comments.

Can a bistro in Pottsville, Pa. fire employees for using medical cannabis?  Not anymore.  On Tuesday, May 17, 2016, the Pennsylvania Medical Marijuana Act (SB-3) (“MMA”) went into effect, following Governor Tom Wolf’s signature last month (as previously reported here).  Pennsylvania joins 24 other states, including New York, New Jersey and Connecticut, on the Pineapple Express.  Along the way, employers will learn their ability to discipline employees for consuming medical marijuana on the job, for showing up to work under the influence of medical marijuana, and other unintended consequences that will bud from the law. Continue Reading The “Key-Stoned State”: Employer’s Guide to the Pennsylvania Medical Marijuana Law