Dive Brief:

• Walmart discriminated against an worker at an Arizona store when it fired the employee, a medical marijuana cardholder, solely due to a positive drug test, a federal judge ruled last week in the U.S. District Court for the District of Arizona (Whitmire v. Wal-Mart Stores, Inc., No. 3:17-cv-08108​​ (D. Ariz. Feb. 7, 2018)).
• Carol Whitmire, a Walmart employee, obtained an Arizona medical marijuana card in 2013 and began smoking the drug before bed as both a sleep aid and treatment for chronic pain. In 2016, she injured her wrist on the job. She filed an incident report with Walmart the same day, but did not seek medical attention at the time. Two days later she notified HR of continued swelling and pain in her wrist. A personnel coordinator directed her to an urgent care clinic the next day for a wrist examination and post-accident urine drug test. The drug screen tested positive for marijuana metabolites and the employer concluded that "upon reasonable belief, [her] positive test result for marijuana indicated that she was impaired by marijuana during her shift that same day." Whitmire was suspended for the positive test and eventually fired.
• Whitmire filed suit, alleging she was wrongfully terminated and/or discriminated against in violation of various state laws. A federal district court judge granted sua sponte summary judgment in part for the plaintiff on the question of Walmart's liability for discrimination under the Arizona Medical Marijuana Act (AMMA). "Without any evidence that Plaintiff 'used, possessed or was impaired by marijuana' at work, ... it is clear that Defendant discriminated against Plaintiff in violation of A.R.S. § 36-2813(B)(2) of the AMMA by suspending and then terminating Plaintiff solely based on her positive drug screen," the judge said.

Dive Insight:

Regulation of marijuana, be it medical or recreational use of the drug, continues to be a vexing issue for HR departments in the U.S. At least 30 states have legalized medical marijuana, while more than 10 have signed laws permitting recreational use, but marijuana remains a Schedule I controlled substance under federal law.

Even in states where medical marijuana use is permitted, the way those laws interact with employment can vary widely. In Pennsylvania, for example, employers can't discriminate against certified medical marijuana users, but the state's law doesn't address whether employers must accommodate use of the drug, Linda Hollinshead, partner in the Philadelphia office of Duane Morris LLP, previously told HR Dive. Similarly, Arizona's AMMA prohibits an employer from discriminating against a person in hiring, termination or imposing any condition of employment or otherwise penalizing a person based on "[a] registered qualifying patient's 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."

In July 2017, a Massachusetts employee who had been fired for medical marijuana use was allowed to proceed with her lawsuit alleging the decision violated the state's anti-discrimination law. In that case, the plaintiff was fired after one day of work after failing a post-offer drug test. The employee made a request for accommodation for her Crohn's disease that would allow her to use the drug off site and outside of work hours. The court ruled the employee's request wasn't necessarily "unreasonable," saying a jury should decide the issue.

Employers must know the laws that apply to their particular jurisdiction, and experts at a March 2018 panel advised HR to adopt or update comprehensive drug and alcohol policies. James Reidy, a panel participant and attorney at Sheehan Phinney Bass & Green PA, said that employers may soon be pushed to relax certain zero-tolerance drug policies, adding that employers also should fully explain any drug testing procedures to workers.