Federal Court Affirms AMMA Patients Protection …


Federal Court Affirms AMMA Patients Protected Against Employment Discrimination


Valentine’s Day came early this year and brought with it some AMMA patient-rights love.  On February 7th, Judge James Teilborg of Arizona’s Federal District Court ruled on summary judgment that AMMA grants AMMA patients the right to sue their employers, if those employers discriminate based on AMMA patient status.

In Whitmire v. Wal-Mart, a Wal-Mart employee was injured on the job.  In the course of Wal-Mart’s investigation of the injury, the employee was required to submit to drug screening and tested positive for cannabis metabolites that derived from her use of medical marijuana the day prior to her injury.  Wal-Mart terminated her employment, and she sued Wal-Mart on an array of bases including discrimination of her status as an AMMA patient.

The parties are fighting over, amongst other things, whether the employee was impaired by her medical marijuana.  The case appears headed for trial.  But the interim summary judgment ruling affirms explicit and implicit patient rights under AMMA.  Because this is a trial court ruling, not an appellate ruling, it does not stand as binding precedent.  Nonetheless, employment lawyers will be able to cite this ruling.

So, what rights have been affirmed?  A.R.S. § 36-2813(B) reads:

  1. Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either:
    A. The person’s status as a cardholder. B. 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 plain English, certain employers with Federal connections (defense contractors, for example) are permitted to discriminate against employees, simply for their AMMA patient status.   Most other employers are generally prohibited from discriminating against their employees based on their AMMA patient status.  However, employee freedom from discrimination only goes so far, and AMMA patients lose their special status when they use, possess, or are impaired by marijuana at their place of employment.   Unless your employer has an explicit written policy tolerating marijuana use on the job, they likely don’t, and AMMA allows employers to discipline an AMMA patient employee who “used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of operation.”

Gary Smith head shot

Gary Michael Smith is an attorney and arbitrator and partner in the Phoenix Arizona-based Smith Saks Kuzmich PLC.   He is also a founding director and current president of the Arizona Cannabis Bar Association.  He can be reached at smith@sskattorneys.com.

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