Global Ganja Report

In a sign of progress, the courts are increasingly siding with employees fired for use of cannabis under state medical marijuana programs. The latest such victory comes from Arizona, where precedent has been set. Other states, however, are still awaiting legal clarity on the question.

A former Arizona Walmart employee and card-holding medical marijuana patient who was fired after testing positive for cannabis has won a wrongful termination suit in federal court.

In the Feb. 7 ruling, US District Judge James A. Teilborg in Phoenix found that the company was unable to prove that the employee was impaired on the job, and therefore engaged in wrongful termination. The company was specially found to be in violation of the non-discrimination provision in the Arizona Medical Marijuana Act, approved by state voters in 2010.

Attorney Joshua Carden, who argued the case, hailed the ruling as "the first of its kind in Arizona." Carden told the Phoenix New Times: "No court has officially decided whether a private right-of-action exists under the Arizona Medical Marijuana Act, so that was a big part of the decision."

Punished for on-the-job injury
Carol Whitmire, who had worked for Walmart for eight years at two Arizona locations, got the sack after she suffered an injury on the job in May 2016. According to court documents, she had been leveling bags of ice in the ice machine at the chain's location in the town of Taylor, when one bag fell on her wrist. She was transfered to an "urgent care" center.

Walmart company policy calls for all employees who visit urgent care to submit to a drug test. Whitmire—who was legally registered to use medical marijuana for shoulder pain and sleep issues—tested positive for cannabis metabolites.

On July 4, 2016, she was suspended from her job on the basis of the test results, and was formally fired on July 22. As Business Insurance website notes, her termination interfered with her ability to receive workers' compensation to cover her medical treatment.

With help from the federal Equal Employment Opportunity Commission and the civil rights division of the Arizona Attorney General's Office, Whitmire filed a discrimination suit against Walmart, and followed it up with a wrongful termination charge. She asserted that the company was in violation of the AMMA, as well as the Arizona Civil Rights Act, and the state's worker compensation law.

In his ruling, Judge Teilborg granted partial summary judgment to Whitmire for her discrimination claim under the AMMA. The Act states that it is illegal for an employer to fire based on a "positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment."

Judge Teilborg turned down the claims alleging discrimination under the state Civil Rights Act and workers' comp law. The court has yet to make a decision on awarding damages to Whitmore, or ordering her reinstatement at the job.

In a statement to the New Times, Walmart wrote that the company is "pleased the Court dismissed several of the claims, and we will continue to prepare our case."

The first for Arizona, but not the first
While this ruling is a first for Arizona, it is part of a growing trend around the country. After years of upholding employee firings for use of cannabis even under state medical marijuana programs, the courts are finally starting to turn around on the question.

A recent overview on the legal news site Lexology notes the case of Noffsinger v. SSC Niantic Operating Co., LLC, in which a Connecticut federal court held that a federal contractor could not enforce its zero-tolerance drug policy against a medical marijuana user.

Similarly, Oklahoma law bars employers from punishing workers based on their status as medical marijuana card holders, or a positive drug test for cannabis, unless the employer would lose a benefit under federal law. While such statutes do not prohibit employers from disciplining workers who consume cannabis, or are under its influence, while on the job, it may be difficult to determine when an employee is actually impaired or if a drug test is warranted.

"This difficulty can give rise to liability for discriminatory drug testing or wrongful employment actions in instances where a contractor is mistaken," according to the analysis by Alabama-based law firm Bradley Arant Boult Cummings LLP.

However, other medical-marijuana states do not require accommodation of employees' use, the analysis finds. In California, an employer may dismiss a worker who tests positive for cannabis—even after state legalization. Under Ohio law, employers are not barred from discharging, disciplining or refusing to hire an individual on the basis of use or possession of medical marijuana; nor are they restricted from establishing and enforcing a zero-tolerance drug policy. And this despite the passage of a medical marijuana law in the Buckeye State in 2016.

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