Albertsons Fired Forklift Driver for Pot Despite Medical Marijuana Card

An Albertsons store
An Albertsons store Caldorwards4, Wikimedia commons
Thomas Lee worked at a Safeway distribution center for more than two decades.

When the the Idaho-based grocer Albertsons took over Safeway operations in 2018, the company transferred Lee from a workplace in Tempe to Tolleson. They also made him a forklift driver.

Within 48 hours of the takeover, Albertsons fired Lee after his urine tested positive for cannabis, despite his valid Arizona medical marijuana card. Lee claims he was not impaired at work and that his termination amounts to discrimination.

He filed a lawsuit saying as much in Maricopa County Superior Court last week. Lee's claim hopes to clear up questions about labor law as it pertains to the voter-approved Arizona Medical Marijuana Act, particularly an amendment by the legislature allowing employers to fire cardholders in "safety sensitive positions."

According to the lawsuit, Albertsons hired Lee as a forklift driver on May 1, 2018. He previously had worked as a receiver and coder under Safeway's management, during which time he operated forklifts "on rare occasions."
Albertsons gave Lee about one hour of training, the lawsuit claims, despite policies stating that he should have gotten one week of training and supervision.

The apparent accident caused damage "to the rack, the pallet of noodles, and the adjacent pallet with a similar soup product."

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On his first day in his new position, Lee drove a forklift for six hours before a pallet loaded with ramen noodles fell from an upper rack to the ground. The apparent accident caused damage "to the rack, the pallet of noodles, and the adjacent pallet with a similar soup product."

Per company policy, the dropped pallet meant Lee would have to undergo a drug test. Prior to the urine test, Lee told his supervisor that he had a valid medical marijuana card.

The drug screening showed that Lee's urine contained THC (the active ingredient in cannabis) metabolites.
Lee was fired the next day for "testing positive for marijuana," the lawsuit claims. Nobody told him they believed he was impaired on the job.

According to the lawsuit, Lee uses marijuana "to dull chronic pain from prior work-related physical strains and injuries."

A spokesperson for Albertsons said the company does not comment on pending litigation.

The Arizona Medical Marijuana Act — passed by voters in 2010 — legalized the use of cannabis for medical purposes.

The law outlined several rules for medical marijuana cardholders with jobs: You can't show up to work high, you can't get high at work, and you can't bring pot to work. On the flip side, your employer can't fire you simply for having a medical marijuana card or having marijuana metabolites show up on a drug test.

click to enlarge An Albertsons store - CALDORWARDS4, WIKIMEDIA COMMONS
An Albertsons store
Caldorwards4, Wikimedia commons
There's one exception, thanks to an amendment to the law passed by the legislature in 2011. An employer can exclude you from a "safety sensitive" job — say, nurse or security officer or forklift driver — if they have a "good faith belief" that you're using any drugs, including medical marijuana.

Lee's lawyer, Joshua Carden, anticipates that Albertsons may bring up the "safety sensitive" exception as a defense, to which he says: The law passed by legislators in 2011 is unconstitutional.

Carden said there's a higher bar to change laws passed through the ballot measure process and argues the legislature did not have the legal authority to pass the "safety sensitive" exception to the Arizona Medical Marijuana Act.

"They can't just amend it willy-nilly," Carden said. "It is the voters' will."

The constitutionality of the "safety sensitive" provision "is a question that the Arizona Supreme Court will answer," he added. Is he saying Lee's case will go to the state's highest court? "It could."

Carden has won big decisions for medical marijuana users before. In February, he secured a victory in federal court for Carol Whitmire, a cardholder who was fired by an Arizona Walmart for testing positive for marijuana.

A judge ruled that despite the positive drug test, Walmart did not prove Whitmire's urine "sufficiently establishes the presence of metabolites or components of marijuana in a scientifically sufficient concentration to cause impairment."

The decision effectively recognized the private right-of-action for Arizonans to sue for discrimination under the Arizona Medical Marijuana Act.
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Steven Hsieh was a staff writer for Phoenix New Times from August 2018 to April 2020.
Contact: Steven Hsieh