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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.

Michigan becomes the tenth state to legalize cannabis on a recreational level, and Missouri and Utah now join thirty-one other states who have legalized medical marijuana. But what’s next and how will this affect employers?

Here is a quick summary of some of the major issues employers may face now that cannabis is legal in Michigan, Missouri, and Utah.

Michigan. Employers can rejoice in that the recreational bill leaves their right to refuse to hire or to discharge an employee intact. The act “does not prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while under the influence of marijuana. This act does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s violation of a workplace drug policy or because that person was working while under the influence of marijuana.”

Compared to some of the other recreational bills that have been passed, this one gives employers some leeway in allowing them to refuse to hire, refuse to accommodate, or discharge an employee simply for violating their drug policies. In order to obtain the protections afforded by this bill, employers that operate in Michigan must confirm that they have adequate anti-drug policies prohibiting the use of marijuana in the workplace.

Missouri. Amendment Two passed by a margin of 66 percent to 34 percent. What this means is that qualified patients who have approval from their physicians will receive identification cards from the State that will allow them to consume marijuana.

The bill affords some level of protection to employers. The bill states that a person cannot bring a claim “against any employer, former employer, or prospective employer for wrongful discharge, discrimination or any similar cause of action or remedy” based on the employer “prohibiting the employee, former employee, or prospective employee from being under the influence of marijuana at work … or for attempting to work while under the influence of marijuana.”

While this bill in theory provides employers some protections, the difficulty employers face is testing for intoxication and determining if the employee is under the influence at work. THC accumulates and slowly releases overtime, such that chronic users may test positive even after many days of abstinence. Further, the way the body metabolizes THC makes it possible that the effects of marijuana continue long after the drug ceases to be detectible via blood tests. Thus, employers need to make sure they train their supervisors on how to properly detect cannabis use. Examples include looking for visible signs of cannabis use, such as, slowed productivity, weed odor, and blood shot eyes.

Utah. Interestingly, the Utah Medical Cannabis Act is silent as to what protections employers are afforded. While current law allows employers to drug screen applicants and allows existing employees to engage in drug testing for investigative purposes, the bill seems to imply that it may allow medical card users more protections in the employment context. Under the “Nondiscrimination” section, the bill states that cannabis use does “not constitute an illegal substance.” That section also prevents landlords from refusing to lease or from penalizing a person simply for being a marijuana card holder. Oklahoma had a similar landlord provision, and there, employers could not discriminate against a person in “hiring or termination or from imposing any term or condition of employment or other penalize a person based upon their status as a medical marijuana card holder or the results of a positive drug test.” Thus, it’s likely that Utah may adopt a similar provision. However, until Utah clears the smoke, employers remain in a haze as to what protections they have. Stay tuned for growing developments.

 

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

The big news this week comes from Colorado, where a cannabusiness has come out on the winning side of a lawsuit over declining property values.

The marijuana business had been sued for damages under anti-racketeering laws. The case was seen as a major threat to the state’s cannabis industry.

In Thailand, medical marijuana may be on the way to legalization.

“Thailand has the best marijuana in the world.”  So claims Jet Sirathraanon, chairman of the country’s National Legislative Assembly’s standing committee of public health, who is pushing to legalize cannabis for medical use.

In our latest installment of politicians supporting (some form of) cannabis, Speaker Paul Ryan recently had some good things to say about both CBD and industrial hemp.

Speaker of the House Paul Ryan (R-Wisconsin) gave a surprise endorsement on Tuesday to industrial hemp and cannabidiol (CBD), the widely-touted cannabis ingredient that is growing increasingly mainstream as an alternative medicine.

And speaking of politicians, there’s an election next Tuesday in the United States, and marijuana is on the ballot.  The National Cannabis Industry Association has a summary of the state initiatives.

With just under four weeks until Election Day, the push to legalize medical marijuana in Utah continues to progress. After years of failed efforts in the state legislature, the issue is being presented directly to voters by way of Utah Proposition 2, the Medical Marijuana Initiative. If the referendum passes, it will legalize medical cannabis for individuals with qualifying conditions. Eligible conditions include autoimmune diseases, Alzheimer’s, cancer, and chronic pain where the patient is unable to use opiates, among several other ailments. Continue Reading Give and Toke: Utah Reaches Compromise Agreement on Proposed Medical Marijuana Policy

On September 5, 2018, a federal district court in Connecticut granted summary judgment to a job applicant after an employer refused to hire her because she tested positive for marijuana in a pre-employment drug test. The decision, Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Nursing & Rehab. Ctr., should serve as a reminder to employers operating in states with medical marijuana laws to evaluate their policies and practices concerning employee use of marijuana outside the workplace. Continue Reading Federal Judge Rules that Employer Violated Connecticut Law by Refusing to Hire Medical Marijuana User

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

Following up on last week’s look at an expungement proposal in California, this week we note that Delaware has enacted such a statute.

Expungement is mandatory but not automatic; eligible individuals still need to apply and pay a fee.

When we wrote about North Dakota’s effort to legalize recreational cannabis, we thought that was pretty surprising.  We had no idea that Mississippi was looking to put medical marijuana on the 2020 ballot.

A group in Mississippi, one of the country’s most conservative states, is aiming to put what looks to be a business-friendly medical marijuana initiative on the ballot in 2020.

Not all the action is on the state level; new legislation on the federal level would allow veterans access to medical marijuana.

Veterans Affairs doctors are currently prohibited from prescribing the drug by federal law.

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

When it comes to legalization news, Oklahoma is the state that keeps on giving.

Oklahoma Gov. Mary Fallin on Wednesday signed into place strict emergency rules for medical marijuana that pot advocates say are intentionally aimed at delaying the voter-approved use of medicinal cannabis.

Two pro-cannabis group filed lawsuits in Oklahoma accusing regulators of improperly imposing rules aimed at curbing the growth of the state’s MMJ industry.

Turning our attention further west, California has released proposed cannabis regulations.

California’s Bureau of Cannabis Control (BCC) released a proposal on Friday, July 13 outlining permanent cannabis industry regulations for the state.

Get your comments in now or forever hold your peace.

And those regulations are more than just red tape.  They have a real impact on the marketing and sale of cannabis.  What they don’t always do is make a lot of sense.

These unusual restrictions on legal marijuana show that the U.S. cannabis industry has a long way to go before becoming fully accepted.

As previously reported, Oklahoma’s medical marijuana laws dictate that an employer cannot discriminate against a person in hiring or termination, or otherwise penalize a person due to the person’s status as a medical marijuana holder or as a result of a positive drug test. So now that Oklahoma has gone green and created such limitations on employers, how will that impact employer drug testing policies?

To put it bluntly, nothing in the new law seems to specifically prevent or impact the general testing statute which allows for random testing. As an initial matter, to have any protections under the new law, an employee needs to have a medical marijuana license; thus, without the license employees are not protected.

Second, while the law states that an employee cannot be terminated simply because he or she possesses a medical marijuana card or because he or she tests positive for marijuana in a drug screen, the law does not prevent employers from taking into consideration other factors such as any negligent work behavior or bad performance, any injuries the employee has caused in the workplace, or what type of work is being performed. With that said, employers who choose to follow this path, are in for a hazy ride. If employers refuse to hire an applicant or choose to terminate or otherwise penalize a pot-licensed employee, the employer puts itself in the difficult position of having to prove that the employer is not relying solely on the test results when making employment decisions.

Third, as previously reported, while the new law provides a carve out for employers – an employer may take action against an employee if it stands to lose a monetary or licensing benefit as a result of employee usage, if federal laws prohibit use of drugs (“DOT”), and if the license holder “uses” or “possesses” marijuana while at work or during hours of employment – the challenge with this statute and other similar ones is proving “use” while at work. Use is difficult to prove because drug tests do not show when employees use marijuana or are under the influence of marijuana. It’s possible that a drug test could show up positive but be as a result of an employee’s off-duty use of marijuana.

Lastly, nothing in the law discusses whether a collective bargaining agreement may waive any rights in the new law. The Oklahoma general testing law does expressly state that any CBA must have basic protections. However, it is still unclear whether a Union can waive the protections in the law in a CBA.

Accordingly, while nothing in the new law seems to prevent or impact the general testing statute, employers should review their drug-testing policies to ensure compliance with the new laws. And of course, marijuana remains an illegal drug under federal law—so there may be potential preemption issues when it comes to testing.

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

Last week, we focused on Vermont’s legalization of recreational marijuana; this week we (re)turn our attention to Oklahoma.

Cultivators selected for Oklahoma’s emerging medical marijuana industry may face a challenge in starting up operations, particularly when it comes to obtaining seed.

Hot on the heels of Oklahoma’s successful medical cannabis vote, advocates in the state are collecting signatures to put adult-use legalization on the November ballot, Oklahoma’s News 4 reports.

In other state cannabis legalization news, you may recall the roller coaster ride of marijuana in Maine.  Here’s the latest twist in the story.

Governor LePage has lost this battle.

Banking for the cannabis industry is a major problem, as regular readers of this blog know.  Legislators on both the state and federal level are trying to change that.

New York Gov. Andrew Cuomo has directed the state’s Department of Financial Services (DFS) to provide guidance to support the safe and sound provision of banking services for medical marijuana and industrial hemp businesses.

For financial institutions interested in banking state-legal marijuana businesses, 2018 has been a rollercoaster.  See our take on the STATES act here.

And in case you feel the need to keep up with the new names for marijuana, the DEA has got your back.

The U.S. Drug Enforcement Administration (DEA) has updated its list of slang terms for 2018, with some amusing results.

On June 25, 2018, the Food and Drug Administration (“FDA”) approved Epidiolex (cannabidiol), the first marijuana derived drug for use in the United States, to treat two rare forms of epilepsy. This decision for the FDA could have sweeping effects for the marijuana industry. While the FDA has previously approved drugs comprising synthetic (manufactured) cannabinoids, this is the first FDA approved drug comprised of an active ingredient derived from marijuana. Even with FDA approval, further action is required before Epidiolex can enter the market in the United States.

Continue Reading FDA Approves First Marijuana-Based Drug to Treat Epilepsy