On February 7, 2019, the United States District Court, District of Arizona provided some much-needed guidance regarding the availability of private causes of action against employers under the Arizona Medical Marijuana Act (AMMA) and the applicability and constitutionality of certain affirmative defenses available to employers under the Employer Protection from Litigation (EPL) revisions to the Arizona Drug Testing of Employees Act (DTEA). Many of the issues tackled by the Court in Whitmire v. Wal-Mart Stores, Inc., No. CV-17-08108-PCT-JAT, 2019 WL 479842 (D. Ariz., Feb, 7, 2019) were issues of first impression, and the Federal District Court sought briefing not only from the parties to the lawsuit, but from the State of Arizona, who submitted an Amicus Curiae Brief.
First, the bad news for employers: the Court ruled that an implied private right of action exists with respect to the AMMA restrictions. In other words, the Court held that employees have a right to file a lawsuit against their employer for violating their rights under the AMMA; rights that prevent employers from discriminating against a person in hiring, termination, or imposing any term or condition of employment based upon: (1) the employee's status as a cardholder under the AMMA; or (2) the qualifying employee's positive drug test for marijuana components. The Court also ruled this implied private cause of action is viable on its own, without the need to file a separate count alleging a violation of public policy pursuant to the Arizona Employment Protection Act (AEPA).
Second, the positive news for employers is that certain provisions of the EPL did not unconstitutionally amend the AMMA and remain viable affirmative defenses. Specifically, the Court ruled:
[A]n employer cannot be sued for firing a registered qualifying patient based on the employer's good-faith belief that the employee was impaired by marijuana at work, where that belief is based on a drug test sufficiently establishing the presence of ‘metabolites or components of marijuana' sufficient to cause impairment.
Practically speaking, however, the Court's ruling means that an employee's positive drug screen alone is insufficient to prove impairment by marijuana, where the employer: (1) provides no other evidence of impairment; and/or (2) fails to provide any expert testimony establishing that the level of metabolites is sufficiently high enough to cause impairment. Accordingly, the court denied Wal-Mart's motion for summary judgment and ruled that, as to liability only, Wal-Mart violated the AMMA by terminating employment solely based on a failed drug test.
Notably, the Court did not address the availability or constitutionality of other affirmative defenses pursuant to the EPL revisions to DTEA including, without limitation, the effect of designating certain positions as “Safety-Sensitive,” since Wal-Mart conceded that the employee was not employed in a “Safety-Sensitive” position.
The Whitmire decision serves as a wake-up call to Arizona employers who engage in a pattern and practice of failing to hire, disciplining, and/or discharging qualified employees under the AMMA for a failed drug test. With proper planning, training, and guidance, Arizona employers can ensure compliance with the AMMA and effectively take advantage of all applicable affirmative defenses under the DTEA.
Farhang & Medcoff attorneys work closely with employees to determine whether a cause of action exists under the AMMA and with Arizona employers to develop policies and procedures that are not only compliant with the AMMA but take advantage of all available defenses.