Walmart Unfairly Fired Employee For Medical Marijuana Use, Judge Says

By Paul Gaita 02/20/19

The judge's ruling is reportedly the first of its kind in Arizona and may positively impact similar cases in the future.

people entering a Walmart

A former Walmart employee and medical marijuana patient who was fired after testing positive for THC has won a wrongful termination suit against the mega-retailer.

An Arizona judge ruled in favor of Carol Whitmire, who in 2016 was injured while on the job at Walmart. Company policy requires that employees who visit urgent care must submit to a drug test, and Whitmire—who used medical marijuana for shoulder pain and sleep issues—tested positive for cannabis metabolites.

When Walmart fired Whitmire, she brought a wrongful termination suit against the company, claiming that it had discriminated against her in violation of the Arizona Medical Marijuana Act (AMMA).

As the High Times noted, the judge's ruling could have a positive impact on similar cases in the future.

Whitmire had been a Walmart employee at two Arizona locations for about eight years prior to her injury. According to the lawsuit, a bag of ice fell on Whitmire's wrist in 2016, prompting a visit to urgent care.

Per Walmart's policy, Whitmire also underwent a drug test, and informed Walmart's human resources department that she had been a registered medical marijuana patient for five years.

As the Phoenix New Times noted, court records showed that Whitmire only used marijuana before bed to treat chronic shoulder pain and as a sleep aid, and never came to work impaired.

Whitmire's complaint contended that on July 4, 2016, she was suspended from work as a result of the urine test, and was eventually fired on July 22. With the help of the Equal Employment Opportunity Commission and the civil rights division of the Arizona Attorney General's Office, she filed a discrimination charge against Walmart, and followed it with a wrongful termination charge which, as the New Times noted, alleged violation of the AMMA, the Arizona Civil Rights Act, and the state's worker compensation law.

In his ruling, Arizona U.S. District Judge James A. Teilborg granted partial summary judgment to Whitmire in regard to the discrimination claim under the AMMA. The Act notes that it is illegal for an employer to hire or 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 denied the claims of discrimination under the civil rights act or worker's compensation laws. 

Teilborg also addressed Walmart's statement about the legality of the charges under the state's Drug Testing of Employees Act, by noting that the drug test could not prove that Whitmire was impaired at work or that the presence of metabolites in the urine sample could "sufficiently" establish impairment.

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

Whitmire's lawyer, Joshua Carden, described the ruling as "the first of its kind in Arizona," and added that the court will decide on damages or possible reinstatement for Whitmire in May 2019.

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Paul Gaita lives in Los Angeles. He has contributed to the Los Angeles Times, Variety, LA Weekly, and The Los Angeles Beat, among many other publications and websites.