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NOV

18

What Employers Should Know About the Arizona Medical Marijuana Act

Summary for Employers of
Arizona Medical Marijuana Act


Julie A. Pace (jpace@cavanaghlaw.com 602.322.4046)
David A. Selden (dselden@cavanaghlaw.com 602.322.4009)
Jodi R. Bohr (jbohr@cavanaghlaw.com 602-322-4003)

The passage of Proposition 203 makes Arizona the 15th state to legalize medical marijuana. Under the Arizona Medical Marijuana Act (the "Act"), the State now has 120 days to draft regulations that
will give additional guidance regarding the use and distribution of medical marijuana, which is not expected to be available until around April 2011.

Authorized Marijuana Uses:

People will be able to register with the Arizona Department of Health Services (the "Department") to become a cardholder. A "cardholder" may be a qualifying patient, a designated caregiver or a nonprofit medical marijuana dispensary.

A "qualifying patient" is a person who has been diagnosed by a doctor as having a debilitating medical condition. The statutory definition of "debilitating medical condition" includes cancer, glaucoma, HIV, AIDS, severe and chronic pain, and any other medical condition that may be added by the Department.

Authorized Marijuana Dispensaries:

Under the Act, codified at A.R.S. § 36-2801 et seq., there can be one dispensary for every 10 pharmacies, but cardholders may cultivate up to 12 marijuana plants if they live 25 miles or more from the nearest dispensary. Patients may receive up to 2 ½ ounces of marijuana every two weeks from dispensaries. The Department will review applications for dispensaries and patients.

Issues for Employers:

Non-Discrimination Against Users:
The Act presents several issues and concerns for employers. The Act prohibits employers from discriminating in "hiring, termination or imposing any term or condition of employment or otherwise penalize a person" based upon the person's status as a cardholder or a drug test that detects marijuana. Nevertheless, employers may discipline employees who used, possessed or were impaired by marijuana while at work or during work hours.

Exceptions for Other Laws and Regulations:
Employers who could lose a monetary or licensing-related benefit under federal law or regulations are exempt from this provision, and therefore are not required to employ a medical marijuana user in violation of those other laws or regulations.

Discipline/Termination for Impairment:
Based upon the Act, employers must be able to demonstrate that a cardholder was impaired to discipline the employee. Employers should train the supervisors of employees in safety sensitive positions and should document signs of impairment when there is a reasonable suspicion of impairment, as employers cannot act based solely upon a failed drug test that detects marijuana.  Signs of impairment include red, bloodshot eyes; dilated pupils; poor concentration; impaired
perception of time; loss of energy; and impaired perception of distance. The rationale for not being able to make employment decisions based on a cardholder's positive drug test for marijuana is that, unlike alcohol, drug tests do not measure impairment because marijuana is detected in a drug test for about one month.

Other Employment Issues:

Other issues that may arise in the employment context include:
  •  The Act does not assure the Employer's right to obtain confirmation that an employee's positive drug test is due to medical marijuana use.
  •  The definition of severe and chronic pain is broad.
  •  Knowledge of an employee's use of medical marijuana may  create other employment law issues. Employers should keep in mind the interplay of the Family Medical Leave Act, Americans with Disabilities Act, Workers' Compensation, Genetic Information Non-Discrimination Act, and HIPAA when dealing with medical marijuana issues.
Recommendations:

Employers should revise their employment policy manuals, specifically the drug testing policies, to make those provisions consistent with the potential use of medical marijuana. Our attorneys are available to review and conform drug testing policies for a small, nominal fee.

Employers with drivers with commercial driver's licenses or who are subject to Department of Transportation or other federal drug statutes and regulations, should have counsel review those policies as well to harmonize them with the Arizona Act. The federal laws and regulations will take priority over the Arizona Act.

For additional information or guidance, please contact any of the attorneys in The Cavanagh Law Firm's Labor, Employment, OSHA, Immigration & Litigation Practice Group, who provide, among other things, review or drafting of personnel policies, including drug and alcohol policies, providing anti-harassment, antidiscrimination,
and no retaliation training and other human resource topics; conducting or assisting with investigations; handling charges of discrimination filed with ACRD, EEOC, OSC, HUD, OSHA; handling
personnel review board administrative matters; wage and hour issues and audits; drafting and preparing employment agreements and compensation; I-9, E-Verify, and Immigration Compliance training, and OSHA.

Julie A. Pace at 602.322.4046 or jpace@cavanaghlaw.com
 
David A. Selden at 602.322.4009 or dselden@cavanaghlaw.com

Heidi Nunn-Gilman at 602.322.4080 or hnunngilman@cavanaghlaw.com

Jodi R. Bohr at 602.322.4003 or jbohr@cavanaghlaw.com

Karen C. Reynolds at 602.322.4077 or kreynolds@cavanaghlaw.com

Joy Garvey at 602.322.4081 or jgarvey@cavanaghlaw.com