United States District Judge Dominic Lanza issued a tentative ruling in Lee v. Albertsons LLC, 2:19-CV-04493-DWL (D. Ariz.) which challenges the “safety sensitive” exception to Arizona’s Medical Marijuana Act (“AMMA”). Lee’s case arose after Albertsons terminated Lee’s employment because he had tested positive for marijuana metabolites following a forklift accident at work. Lee, a medical marijuana cardholder, challenged the termination, claiming his termination violated the AMMA’s anti-discrimination provision. Albertsons moved to dismiss Lee’s claim, arguing that its decision was protected under Arizona’s Drug Testing in Employment Act (“DTEA”). Judge Lanza, citing Arizona’s Voter Protection Act, reluctantly agreed with Lee on this issue.
To understand this decision, we need to provide a little history. Passed by ballot initiative in 1998, the Voter Protection Act amended the Arizona Constitution to protect voter referendums and ballot initiatives from legislative manipulation or repeal. The Act prevents the Legislature from repealing a ballot initiative or referendum, and prohibits the Legislature from amending or changing a ballot initiative or referendum unless the legislative change is passed by a three-fourth’s majority and “furthers the purpose” of the ballot initiative or referendum.
In 2010, the AMMA was passed by ballot initiative. Among other things, it provides that employers may not discriminate against medical marijuana cardholders in the workplace based on their cardholder status or a positive drug test for marijuana alone. Shortly thereafter the Legislature amended the DTEA to add a “safety-sensitive position” exception to the AMMA’s protection which allowed employers to prohibit cardholders from holding safety sensitive positions.
Relying on an earlier ruling by the Arizona Supreme Court that the AMMA’s primary purpose was “to ensure that those using marijuana pursuant to the AMMA would not be penalized” Judge Lanza found that the DTEA unconstitutionally amended the AMMA “by exposing AMMA cardholders to an additional category of workplace discipline that was not authorized by AMMA itself.” As a result, Judge Lanza issued a “tentative ruling” in favor of Lee. Albertsons settled the lawsuit before the tentative ruling became binding.
Although Judge Lanza’s decision is tentative and unpublished and is not binding legal precedent, the analysis he provides is logical and likely to be followed by other judges facing the same issue in the future. Because of this, it is important that employers understand the risks in relying upon the DTEA’s safety sensitive exception in their decision-making process. This development may require employers to modify drug testing policies that rely upon the safety sensitive exception found in the DTEA. If you would like to discuss your policy, or your practices regarding marijuana and safety sensitive positions, please call.
Until the law changes we are recommending that clients treat medical marijuana like alcohol. Employers will need to train managers on the signs of marijuana impairment and be vigilant in monitoring employee behavior during work. Managers should document signs of impairment and send employees exhibiting impairment for immediate testing. Employers should consider using a saliva-based test because a urine test does not test for the active metabolite of marijuana and a blood test (which does test for the active ingredient) will often be negative because the body quickly metabolizes THC. Employees sent for testing should be placed on administrative leave and not returned to the workplace until the test results come back and a decision is made about the appropriate corrective action. In this regard, employers should consult with counsel to ensure that the decision complies with the AMMA and the Americans with Disabilities Act.