Walmart’s Zero Tolerance Drug Policy Clashes with Arizona’s Medical Marijuana Law

Starting in the 1980s, the government’s war on drugs found its civilian counterpart in corporate policies that required all employees to be drug-free. Many employers drug-tested their employees and fired employees who failed the tests. Federal regulations around workplace injuries also require random drug tests in many industries, especially when heavy machinery or other tools are involved.

Some companies run drug tests as part of the interview process alongside the standard background check. This is generally a urine sample, but it can also include a hair sample.

A federal law enacted in 1988, at the height of drug war hysteria, mandated employers to maintain drug-free workplaces as a condition of receiving federal contracts or grants. Like many laws, the Drug Free Workplace Act had little value beyond making it appear that Congress was doing something about a perceived problem.

The Substance Abuse and Mental Health Services Administration (SAMHSA), an agency within the U.S. Department of Health and Human Services, dutifully maintains web pages providing resources to employers that want to maintain a drug-free workplace.

One of those pages links to the Department of Labor’s Drug-free Workplace Advisor. Readers who choose to read about how the Department of Labor “ended the drug-free workplace program in 2010” and “does not currently administer a ‘Workplace drug testing’ advisory web page.” Apparently, SAMHSA hasn’t followed its own links.

Specific laws targeting specific jobs make sense. Commercial truck drivers and airline pilots should not be under the influence of any substance that impairs their ability to drive or fly safely. Likewise, repair technicians who drive large trucks and work with heavy equipment or tools may be required to undergo regular drug screening.

In other cases, policies that prohibit drug use by employees have proven to be a headache for both employers and employees. Tests that result in false positives can result in the termination of valuable employees who have done nothing wrong. In an office environment, regular drug tests may not have an obvious value.

Drug-free workplace policies are also problematic when they conflict with an employee’s legitimate medical need to use a drug. Walmart recently learned that lesson when it unthinkingly applied its “zero tolerance” policy to a disabled worker who used medical marijuana. With many states legalizing marijuana, especially for certain medical conditions, the legal climate is changing. On a federal level, marijuana is still an illegal drug. On a state level, it may not be that simple.

What happened when Walmart fired a medical marijuana user?

Walmart, one of the nation’s largest employers, also has one of the nation’s toughest drug-free workplace policies. Its “zero tolerance” policy has long been applied to casual users of marijuana. An Arizona lawsuit recently revealed that The Walmart drug policy is just as intolerant of employees who lawfully use medical marijuana during their own time.

Carol Whitmire worked for two Walmarts in Arizona for eight years before a bag of ice fell on her wrist. When she went to a doctor for treatment, Walmart policy required her to get a drug test. A cynic might believe that policy was enacted to discourage employees from reporting workplace injuries and to give Walmart an excuse to fire employees who are injured on the job, an action that is otherwise prohibited by workers’ compensation laws. Walmart did, in fact, fire Whitmore for no reason other than the result of her drug test.

Whitmire held a valid medical marijuana card. She smokes marijuana before bed to treat her medical conditions. The effects of marijuana consumption are long gone after a full night of sleep. There was no evidence that she used marijuana at work or that she was impaired by marijuana use while working.

Whitmire’s urine tested positive for marijuana metabolites. That test provided no useful information about whether Whitmire had been under the influence of marijuana at work. The active ingredients in marijuana no longer affect the brain a few hours after consumption ends, but inactive metabolites are stored in fat cells and can be released into urine for days, weeks, or even months after a marijuana user stops smoking. So in pre-employment drug tests or random/after accident drug screen, marijuana use an hour before the test looks the same as marijuana use a week before.

Whitmire was an employee-at-will. So Walmart could fire her for any reason, or no reason unless it fired her for an illegal reason. Employers with drug-free workplace policies typically rely on the absence of employee rights to justify firing employees who had positive test results regardless of whether the employee was impaired while working.

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How does Arizona’s medical marijuana law apply here?

Arizona adopted an initiative to legalize medical marijuana and to protect employees who lawfully use medical marijuana. The Arizona Medical Marijuana Act prohibits basing employment decisions on a “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.”

Arizona’s legislature is powerless to repeal laws that are enacted by voter initiatives. The legislature is also prohibited from amending a voter-initiated law in ways that would undermine the law’s intent.

Arizona’s legislature subsequently enacted a law that shields employers from liability for drug testing of employees when they have a good faith belief that the employee was impaired while working. A federal court held that the legislation did not undermine the employee protections of the Medical Marijuana Act because it only applies to employer actions based on evidence of impairment at work as opposed to evidence of medical marijuana use outside of work hours.

Why did the judge reject Walmart’s defense?

Whitmire sued Walmart, contending that her termination violated the anti-discrimination component of the law. A judge agreed, rejecting Walmart’s argument that the law does not give employees the right to sue their employers. The judge decided that Arizona did not enact a hollow anti-discrimination law that employers are free to ignore. A right without a remedy for its violation is no right at all. Drug testing programs are applicable in certain fields, and Walmart would have the right to terminate an employee if they had reason to believe an employee was under the influence of drugs while on the clock.

This could be why Walmart also argued that it had a good faith reason to believe that Whitmire was under the influence of marijuana when she came to work. Since toxicologists have long established that marijuana metabolites in urine have no clear relationship to the presence of marijuana’s active ingredients in the brain, Walmart’s argument was baseless. Whitmire was not under suspicion prior to the accident, and the accident was the only reason she fell under the drug testing policy.

Walmart rested its defense on a provision of Arizona law that prohibits employers from assuming that an employee is under the influence of marijuana simply because a test result shows the presence of metabolites “in insufficient concentration to cause impairment.” Walmart rather disingenuously argued that Whitmire’s test result was positive for metabolites in a concentration that was greater than the highest level the test could record and therefore could not be deemed an “insufficient concentration to cause impairment.” Walmart offered no expert evidence to support its understanding of the upper level of the test.

Nor did Walmart offer expert evidence that the test result could establish impairment. Toxicologists have long recognized that a “positive result does not document impairment or even recent use.” The court refused to consider a Human Resources employee’s “good faith” understanding of the meaning of Whitmire’s test results given the absence of any evidence to suggest that she was qualified to form an opinion or that she based her opinion on any evidence whatsoever regarding the meaning of the test result.

Walmart admitted that it had no evidence of actual impairment. It relied solely upon the test result in terminating Whitmire’s employment. The court determined that Walmart offered no evidence of a good faith belief that the test result demonstrated impairment. Walmart offered no explanation beyond its employee’s uninformed opinion to demonstrate a good faith basis for believing that any particular concentration of metabolites correlates with impairment.

Walmart also admitted that, as a matter of policy, it fires employees who test positive for marijuana metabolites regardless of what state law prohibits it from doing. The court agreed with Whitmire that Walmart is not above the law. Because Walmart plainly violated Arizona law, the court held that Whitmire is entitled to judgment against Walmart on her medical marijuana discrimination claim.

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