In Landmark Decision, Judge Rebukes AZ Walmart for Firing Medical Marijuana Patient


One of the most common questions we receive from medical marijuana patients--both current and prospective--deals with workplace drug testing and the possible implications of having cannabis found in your system during a standard drug test.

Because the federal government still classifies medical marijuana as a controlled substance, positive workplace drug test results for medical marijuana patients fall into a gray area that has yet to be addressed explicitly by many of the states where medical cannabis is legal.

The Situation: Fired for Legal Cannabis Use

Back in 2016, Carol Whitmire, a Walmart employee in Taylor, Arizona, was fired after a drug test came back positive, despite the fact that she held a valid medical marijuana card. Whitmire--who had been with Walmart for eight years by that time--injured her wrist while working as a customer service supervisor in the store. Per Walmart’s store policy, the injury led to an urgent care visit and drug test, which came back positive for marijuana metabolites.

According to court records, Whitmire had been a registered medical marijuana patient for about five years and used cannabis before bed to treat shoulder pain, arthritis and as a sleep aid. After the positive urine test, Whitmire disclosed her status as a registered patient to both the urgent care employees and Walmart human resources staff, and she was allowed to continue working for two months before being suspended and ultimately fired in late July 2016.

In March 2017, Whitmire filed discrimination charges with the Equal Employment Opportunity Commission and the civil rights division of the Arizona Attorney General’s Office. Three months later she also sued Walmart in federal court in Phoenix, AZ, alleging discrimination and wrongful termination in violation of the Arizona Civil Rights Act (AMMA) and the state’s workers’ compensation laws.

Mixed Results: A Partial Summary Judgement

In what could prove to be a landmark decision, however, Arizona U.S. District Judge James A. Teilborg granted partial summary judgment to Whitmire for her claim of discrimination under AMMA but denied her claim of discrimination under the Arizona Civil Rights Act and wrongful termination under Arizona employment protection and workers’ compensation laws.

Walmart, of course, denied wrongfully terminating or discriminating against Whitmire, stating that the company’s drug testing policy is “lawful and protected under Arizona’s Drug Testing of Employees Act (DTEA).” The company, however, could not meet the burden of proving that Whitmire’s urine sample after the accident “sufficiently establishes the presence of metabolites or components of marijuana in a scientifically sufficient concentration to cause impairment,” Teilborg wrote.

The Attorney General’s Office Weighs In

The Arizona Attorney General’s office also weighed in on the situation, arguing that the AMMA and DTEA are not in conflict, but should be read together, and that an employer cannot be sued if they believe an employee was impaired while working if that belief “is based on a drug test showing that ‘metabolites or components of marijuana’ are present in scientifically sufficient concentration to cause impairment.”

The AG’s office also stated that under the AMMA, an employee who is a medical marijuana patient “shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.”

What Could This Mean for Medical Marijuana?

In a nutshell, this decision could have far-reaching consequences for medical marijuana patients and providers alike. Given the attention paid in this case to “sufficient” or “insufficient concentrations of marijuana metabolites or components of marijuana,” it seems likely that future restrictions on or guidelines around use of medical cannabis could follow in the footsteps of alcohol regulation, using blood and urine tests to determine whether a patient is under or over a particular threshold.

We asked medical marijuana patient and advocate, nurse practitioner and founder of The Green Nurse Practitioner (The Green NP) Marena De Jesus, ARNP-BC for her thoughts on the recent news:

“It’s a very interesting situation because it’s really a catch-22,” she said. “On one hand, relying solely on a urine sample isn’t best practice, especially since we know that patients can test positive for weeks or even months after consumption. In that scenario, you’re basically using evidence that is not accurate--it’s invalid, in my opinion.

“On the other hand, employees have a responsibility to be informed about their employers’ drug policies. If, for example, a company has a strict policy stating that they do not support cannabis use in any way, shape or form regardless of an employee’s status as a registered patient and whether they only use the treatment outside of work hours, then employees should be aware of that and understand that they are breaching their employee contract if they choose to consume cannabis. For me, the real question, in this case, is whether Walmart has a policy that allows registered medical marijuana patients to work as long as they are not impaired on the job or participating in illegal activities.

“Either way, this news serves as a prime example of how faulty our system is regarding cannabis as medicine in general, and how much work is left to do to develop a system that doesn’t have these gray areas.”

According to Whitmire’s attorney, the court won’t make a decision regarding damages or Whitmire’s potential reinstatement until May of this year. In the meantime, we will continue monitoring developments in this case, so stay tuned for updates!

Today’s blog post is written by Rick Liogier-Weyback, MD, founder, and president of Doctor Jane and our licensed medical marijuana physician. If you are considering marijuana treatment or are wondering if medical cannabis may be right for you, please contact the team here at Doctor Jane to schedule a consultation today.

About Marena De Jesus, ARNP-BC

Marena De Jesus is a registered nurse practitioner and the founder of The Green NP, LLC, a Florida-based organization dedicated to educating the public about medical cannabis and assisting in the efforts of cannabis legalization and advocacy. For the last 10 years, Marena has been assisting the Central Florida community by helping her patients with their journey to wellness.

Throughout her career, Marena worked heavily in clinical research and contributed to several publications on the subject of healthcare access, preventative healthcare, and alternative medicine, making patient education and advocacy an integral part of her practice. Today, she dedicates her efforts to alternative medicine, spending the majority of her time educating others on the medicinal benefits of cannabis.

Marena holds a B.S. in Nursing from the University of Central Florida, where she graduated Magna Cum Laude and Phi Beta Kappa, as well as an MSN in Adult-gerontology Primary Care Advanced Practice Nursing. She is board certified by the American Association of Nurse Practitioners and licensed through the State of Florida Board of Nursing. Marena is an active member of the American Association of Nurse Practitioners and American Medical Marijuana Physicians Association.

For more information, follow The Green NP on Twitter, Instagram, and Facebook.

About Doctor Jane

Doctor Jane is South Florida’s most discreet, professional, and convenient concierge medical cannabis practice. Dr. Luis Enrique R. Liogier-Weyback and his wife, Katie Liogier-Weyback, B.S., R.N., founded Doctor Jane on the core tenets of bringing personal, convenient, professional and discreet patient care to the medical marijuana treatment process. Doctor Jane provides South Florida patients and their caregivers with a safe space where they can exercise their right to access medical cannabis therapy in an environment of their choosing, free from stigma and complications.

Visit our website to find out more or to schedule your own medical cannabis consultation.