Arizona Court of Appeals Division One holds that employer’s termination of marijuana-medical-card-possessing employee, when employee tested positive for a metabolite of marijuana after employee exhibited impairment during work, did not violate the Arizona Employment Protection Act or the Arizona’s Medical Marijuana Act.

An employer subjected an employee to a drug test after receiving reports that the employee appeared impaired at work.  The employee tested positive for a metabolite of marijuana, among other things.  At the time, prior to the November 2020 passage of Proposition 207, marijuana’s use or possession remained a criminal offense in Arizona, unless authorized by Arizona’s Medical Marijuana Act (“AMMA”).  The employee possessed a medical marijuana card but had not informed the employer.  The employer terminated the employee.  The employee then filed suit in superior court, asserting claims for wrongful termination in violation of the Arizona Employment Protection Act (“AEPA”) and defamation.  The superior court granted summary judgment in the employer’s favor.

The Court of Appeals affirmed.  The Court explained that, under the AEPA, an employer may terminate an at-will employee absent bad cause.  Bad cause under AEPA exists when an employee is terminated (1) in breach of an employment contract; (2) in violation of “a statute of this state”; or (3) in retaliation for exercising specified rights.  A.R.S. §§ 23-1501(A)(3)(a)-(c).  The employee asserted the employer terminated him with bad cause because the termination violated the AMMA, an Arizona statute.

Under the AMMA, an employer cannot fire an employee holding a medical marijuana card based on the employee’s “status as a cardholder” or on a “positive drug test for marijuana or components or metabolites” unless (1) the employee “used, possessed, or was impaired by marijuana” at or during work or (2) the employer would lose benefits if the employee was not terminated.  A.R.S. § 36-2813(B)(2).  The Court held that the employee’s termination did not violate AMMA’s public policy because the employer did not solely terminate him because of a positive drug test for marijuana metabolites, but also because the employee exhibited on-the-job impairment.  The Court added, even if the employee could have sought AMMA protection, his invocation of the AMMA—which is not self-effectuating—was untimely.  Particularly, rather than invoke the AMMA when confronted with fitness-for-duty reports and a drug-test-request, the employee delayed until his test results returned positive.

Judge Thumma authored the opinion to which Chief Judge Cattani and Judge Portley joined.