Medical marijuana and workplace rules make for HR headaches, worker dilemmas and lawsuits. Carol Whitmire liked her job as a customer service supervisor in a Walmart store in Taylor, Arizona, but it all starting falling apart the day a bag of ice fell on her wrist. That seemingly random accident unleashed a series of events that ended up in her firing and filing a wrongful termination lawsuit.
Around six years after starting work at Walmart WMT, +0.92% first as a cashier at another store, Whitmire, 61, obtained a state-issued medical marijuana card to treat lasting pain from arthritis and an old shoulder surgery.
In May 2016, that bag of ice fell on Whitmire’s right wrist as she leveled bags in the ice machine. She finished her shift, but the pain and swelling continued for several days. She was sent to an urgent-care clinic by Walmart. Whitmire, 61, obtained a state-issued medical marijuana card to treat pain from arthritis and an old shoulder surgery. At the clinic, her wrist was X-rayed and she took a urine test. No one at the clinic took her medical marijuana card, so Whitmire — anticipating that her employer would know that she had marijuana in her system — told her supervisor that she uses the drug for medical purposes.
Two months later, she was fired, with her positive drug test cited as the reason.
Experts say cases such as Whitmire’s exist in a legal grey area. Employee protections vary across the 34 states and the District of Columbia where medical marijuana is legal . Adult recreational use is also legal in 10 states and Washington D.C., but federal law still deems marijuana an illegal controlled substance.
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“It really is a patchwork,” said Paul Armentano, deputy director of NORML, an organization pushing to fully legalize marijuana.
An estimated 2.5 million people use medical marijuana, according to David Mangone, government affairs director at Americans for Safe Access, an advocacy organization pushing for medical marijuana user protections. Employee protections vary across the 34 states and the District of Columbia where medical marijuana is legal. Company rules can be very strict about medical marijuana use for “safety sensitive” like coal miners, pilots, electrical workers, emergency medical technicians and police officers, he noted. “There’s not a state in country that prohibits employers from creating their own drug testing policies,” he said.
Whitmire appears to have been unlucky. Walmart had changed its drug abuse policies to specifically forbid workers from showing up on the job “under the influence of drugs or alcohol, including medical marijuana,” according to court papers.
She sued for wrongful termination and Arizona District Court Judge James Teilborg decided in February that Walmart was liable for discrimination under the Arizona Medical Marijuana Act. In late March, the parties settled for an undisclosed amount, ahead of any damages proceedings.
Tricky legal terrain surrounding marijuana use and workplace rules
“The judge’s order helped both parties come to a mutually satisfactory outcome,” Whitmire’s lawyer, Joshua Carden, said. “It’s a settlements that my client was happy with.”
As Judge Teilborg’s decision noted, Arizona and eight other states with medicinal marijuana laws have “explicit anti-discrimination protections from adverse employment actions.”
A Walmart spokesman said, “We work every day to create and maintain a safe environment for our associates and customers. We’re pleased we could resolve the matter with Ms. Whitmire.”
Even in states with protections, they are “limited,” said Mangone. A medical marijuana card was a “signficant asset,” he said, but they’re not an “absolute defense to wrongful discrimination.” ‘There’s not a state in country that prohibits employers from creating their own drug testing policies.’ Last month, the drug testing company Quest Diagnostics DGX, +0.64% said the rates of positive drug tests hit a 14-year high in 2018. Marijuana was the most commonly detected substance, according to the national drug testing company.
The presence of marijuana’s high-inducing THC in a urine test doesn’t necessarily mean impairment, the company notes . The chemical can linger for up to a month with a test for a habitual user, it said.
A proposed law in New York City would bar pre-employment drug tests for marijuana, with exceptions for jobs like heavy machine operators and first responders. It breezed through the City Council and Mayor Bill de Blasio supports the measure, a spokesman said.
Mangone said if workers feel they can trust their employer about off-duty medical marijuana use, he said it was important they have “an ongoing conversation, so there are no surprises on either side.” But the presence of trust between staff and management is hardly a given. Indeed, Whitmire’s case showed the perils of speaking up.
Whitmire didn’t bring marijuana to work, or use it during business hours, but she took it before bed at night and helped her manage her pain, she said. Whitmire preferred marijuana to prescribed painkillers like hydrocodone, which is considered an opioid.
Whitmire is now working as a convenience store cashier. She has debts and medical bills, but otherwise says she’s doing alright. “Don’t get fired, and try and find a job, not at 60,” she said. “Ten months unemployed was a killer, psychologically as well as financially.”
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