How Does the New “Medical Marijuana” Law Affect Employers?

By: JohnBarnes

The Arizona Medical Marijuana Act goes into effect on April 15, 2011. The Act permits a “qualifying patient” with a “debilitating medical condition” to obtain a registry identification card from the Arizona Department of Health Services (ADHS). Cardholders can obtain an allowable amount of marijuana from a registered non-profit medical marijuana dispensary and use the marijuana to treat or alleviate certain medical conditions. A “qualifying patient” has to be diagnosed by, and receive written certification from a physician. The Arizona law does not alter marijuana’s status as an illegal drug under federal law.

The Arizona Medical Marijuana Act is now included in the Arizona laws as A.R.S. 36-2801 et seq. The ADHS is the designated agency that has been assigned to create, adopt and enforce a regulatory system for the distribution of marijuana for medical use, the setting up of approved dispensaries and the issuance of identification cards.

How does the Arizona Medical Marijuana Act affect employers? Employers cannot discriminate against a person in hiring, terminating or imposing any term or condition of employment or otherwise penalize a person based on either; (1) the person’s status as a cardholder, or (2) 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.

While only a qualifying patient may use medical marijuana, other individuals may also be cardholders subject to protection from discrimination including (1) the qualifying patient, (2) a designated caregiver or (3) an authorized non-profit medical marijuana dispensary agent.

The Act does create two limited exceptions to anti-discrimination provisions. First, there is an exception for employers who would, “lose a monetary or licensing related benefit under federal law or regulations.” Second, an employer is not required to hire or continue to employ a registered qualifying patient who tests positive for marijuana if the patient used the marijuana on the employer’s premises or during hours of employment.

The Act does not allow employees to use marijuana at the workplace or during work hours. The Act does not authorize any person to undertake any task under the influence of marijuana that would constitute negligence or professional malpractice. The Act specifically forbids any person to operate motor vehicles who may be impaired by sufficient amounts of marijuana components or metabolites. Thus, employers may still take action against employees who use marijuana in the workplace or who work under the influence of marijuana.

Many of you may be asking yourself, “Can’t marijuana be detected in urine tests for several days and even several weeks?” The answer is “yes,” however, the law reads, “the registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.” A.R.S. 36-2814(A)(3)

So how does an employer or the ADHS define impairment? Unfortunately, the Act does not define “impairment” or “under the influence.” Based on the statute, the mere presence of some level of metabolites or components of marijuana in the system is not enough. Employers will have to become more astute at recognizing and documenting behaviors and indicators of marijuana impairment.

Fortunately, for employers, Arizona based employer organizations including the Greater Phoenix Chamber of Commerce, approached the Arizona State Legislature regarding the vague and ambiguous language regarding “impairment.” This prompted the State House of Representatives to present and pass House Bill 2541 which basically allows employers to utilize similar guidelines that are found in “reasonable suspicion” policies. The bill has been sent to the State Senate for a vote (watch our blog for the outcome).

The best practices approach for any business is to have in place a drug and alcohol policy that includes at a minimum “post accident” and “reasonable suspicion” testing. The other types of drug testing include pre-employment and random. Employers need to document any observed conduct, behavior or appearance that is seemingly altering the employee’s job performance or endangering others in the workplace.