Ready or not, medical marijuana will impact Arizona workplaces

While much remains uncertain regarding the implementation of the Arizona Medical Marijuana Act, there is no doubt that employers in the state need to be ready to deal with dramatic changes when the law becomes effective in April.

In an election squeaker last November, Arizona became the 15th state in the nation to allow the use of marijuana for medical purposes. Voters approved the Arizona Medical Marijuana Act, also known as Proposition 203, by a mere 4,341 votes out of the nearly 1.7 million cast.

The Arizona Department of Health Services (ADHS) is still in the midst of issuing regulations governing such diverse topics as the inventory control and security systems required of marijuana dispensaries and how many toilet facilities each must have. And by early April, ADHS will begin taking applications from qualifying patients and their caregivers. Soon thereafter, those patients and caregivers will enjoy protected status in Arizona workplaces.
Thus, by this spring, Arizona employers need to have reviewed their drug-testing and employment discrimination policies to ensure they comply with the new law.

The Law

Generally, the law permits medical marijuana cardholders, which include qualifying patients, designated caregivers and nonprofit medical marijuana dispensary agents, to possess, transport and, in some situations, cultivate an allowable amount of marijuana for medical use.

Significantly for employers, the law prohibits discrimination against all medical marijuana cardholders, including qualifying patients.

The law provides that employers may not discriminate against a person in hiring, termination or by imposing any term or condition of employment or otherwise penalizing a person because of that person’s status as a medical marijuana cardholder, unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations. As noted above, medical marijuana cardholders may include not only patients, but also designated caregivers and nonprofit medical marijuana dispensary agents. As a result, the law creates a new category of individuals protected from discrimination.

The law also prohibits discrimination against a registered qualifying patient based on that person’s positive test for marijuana, unless the patient was impaired by marijuana on the employer’s premises or during the hours of employment. While the law does not require an employer to permit an employee to ingest marijuana at work or to work while under the influence of marijuana, it also states that a registered qualifying patient is not considered to be under the influence of marijuana solely because that person tests positive for marijuana metabolites in an amount that is insufficient to cause impairment.

Qualifying Patients

A qualifying patient is a person who has been diagnosed by a physician as having a debilitating medical condition that results in certain symptoms such as wasting syndrome, severe and chronic pain, severe nausea, or severe and persistent muscle spasms.

For a qualifying patient to receive a registry identification card, the patient must submit written certification from his or her physician stating that, in the physician’s professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana.

ADHS will establish a process for issuing photo ID cards for qualified patients, designated caregivers, and authorized agents of dispensaries. The law requires ADHS to act on applications for ID cards within 10 days and to issue photo ID cards within five days after approval. Thus, employers can expect workers to begin receiving medical marijuana ID cards by mid-April, and they should be prepared to comply with the law by that date at the latest.

Zero-tolerance and pre-employment drug-testing policies likely will present the most challenges under the new law in light of the prohibition of discrimination against qualifying patients based on the presence of marijuana metabolites insufficient to cause impairment. Because there is no accepted testing standard for determining impairment due to marijuana use, this determination will by necessity be subjective.

Also, because a debilitating medical condition under the state law is likely to be a serious health condition under the federal Family Medical Leave Act, employers may have to deal with requests for leave to consume medical marijuana. Employers should consult with legal counsel to ensure their policies serve their business needs, and comply with the new law’s provisions.

[stextbox id=”grey”]Dinita L. James is a partner at Ford & Harrison, She specializes in employment law.[/stextbox]