April 6, 2011

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Medical Marijuana: Arizona Joins the Pack

The debate over legalizing the use and sale of marijuana for medical purposes is not new. In 1996, California became the first state to legalize the medical use and sale of marijuana. The legalization movement gained momentum after that enactment, and several other states followed California's lead in providing legal protection for medical marijuana users.

After several unsuccessful efforts, Arizona recently joined the trend. In the November 2010 General Election, Arizona voters passed by a slim margin Proposition 203, now commonly known as the Arizona Medical Marijuana Act (the "Act"), making Arizona the 15th state, in addition to the District of Columbia, to legalize the medical use of marijuana.[1] As has been the case in other states enacting such legislation, this development poses significant managerial and legal problems for Arizona employers.

Decriminalization of Medical Marijuana

The use of marijuana, even for medical purposes, remains unlawful under federal law. However, in October 2009, the Obama Justice Department announced that it would no longer prosecute medical marijuana users and distributors in states where the medical use and sale of marijuana is lawful as a matter of state law.

In most states that have legalized the medical use of marijuana, state criminal penalties for the use, possession, and cultivation of marijuana are removed for patients with a recommendation or referral from their physicians. In Arizona, for example, the Act permits qualifying patients with certain debilitating medical conditions such as cancer, HIV/AIDS, hepatitis C, and multiple sclerosis, to receive up to 2½ ounces of marijuana every two weeks from dispensaries, or to cultivate up to 12 marijuana plants if they live 25 miles or more from the nearest dispensary.

The Basics of the Arizona Act

The statutes of most states with medical marijuana laws simply do not address workplace issues. Courts in several of these states have concluded that the protection afforded to medical marijuana users under these statutes is limited to the decriminalization of medical marijuana use, possession or sale. These courts generally uphold the right of employers to terminate or otherwise discipline employees whose use of marijuana for medical purposes violates drug-free workplace policies.

The Arizona Act, by contrast, specifically prohibits employers from discriminating against individuals in hiring, promotion or other terms and conditions of employment based on their status as registered medical marijuana card holders, unless doing so would cause the employer to lose a monetary or licensing benefit under federal law. Arizona employers also may not discipline a registered medical marijuana card holder for testing positive for marijuana, unless the individual testing positive used, possessed, or was impaired by marijuana on the employer's premises or during working hours.

The Act also provides that even in the absence of a positive drug test, employers may discipline employees, including registered card holders, for using marijuana in the workplace, or for working while under the influence of marijuana. However, the Act does not appear to permit employers to discipline a card holder for possessing marijuana on the employer's premises unless the employee tested positive for marijuana use.

A Maze For Arizona Employers

The relatively unique employment provisions of the Arizona Act raise significant concerns for employers. Considerable empirical evidence shows that the use of marijuana, whether for medical purposes or otherwise, impairs the user's cognitive functions and ability to perform complex tasks requiring attention and mental coordination, and that the impairing effects of marijuana use last for a considerable period of time after the actual ingestion of the drug. Courts and commentators often have noted the liability to which employers may be subject if third parties are injured by the actions of employees working under the influence of drugs.

Of course, Arizona employers still must comply with OSHA and other federal standards governing workplace safety, especially when their employees perform safety-sensitive tasks such as operating heavy equipment, machinery, or motor vehicles as part of their job duties. In fact, the United States Department of Transportation recently reminded employers in the trucking, railroad, airline, and transit system industries that state medical marijuana laws do not supersede federal requirements to test transportation employees for drug use, and the fact that an employee's use of marijuana was for medical purposes does not excuse an employer from addressing the employee's positive test as specified in the Department's regulations.

The Department's position on this issue poses a particular dilemma for Arizona employers because the Department's regulations do not purport to authorize employers to make hiring or disciplinary decisions on the basis of an employee's positive drug test. The regulations instead merely require an employer whose employee tests positive for marijuana use to prohibit the employee from performing safety-sensitive functions until the employee passes a subsequent drug test and complies with the education and treatment requirements of a comprehensive return-to-duty process prescribed by the Department.

The Arizona Act, by contrast, does contain language permitting employers to "penalize" their employees for operating, navigating or being in physical control of a motor vehicle, aircraft or motorboat while under the influence of marijuana. However, the Act also makes it clear that an employee's positive test for marijuana use, standing alone, is not sufficient to establish that the employee is under the influence of the drug, and that a positive test provides no basis for disciplining an employee who is a medical marijuana cardholder unless the test shows that marijuana was present in the employee's system in a sufficient amount to cause impairment.

The problems these statutory and regulatory ambiguities pose for employers are compounded by the fact that the Arizona Act also fails to define the term "impairment." Unlike in the case of alcohol use, where an employer presumably could rely by analogy on state statutes defining "impairment" for purposes of operating a motor vehicle, or perhaps on the Department of Transportation's even more stringent definition of that term, there is no generally accepted external standard for determining whether a marijuana user is impaired.

Arizona Regulators Offer Little Help

Many observers expected the Arizona Department of Health Services to address these problems when it issued the implementing regulations it was directed to promulgate under the terms of the Act. Unfortunately, the Department's regulations not only fail to define "impairment" or being "under the influence" of marijuana, but they are silent as to any of the troubling employment implications of the Act.

A proposed amendment to the Act presently being considered by the Arizona legislature would define the term "impairment" to mean being under the influence of marijuana to the extent that the employee's job performance abilities are "decreased or lessened." However, this self-evident definition provides little guidance for employers facing difficult decisions concerning the employment of medical marijuana users.

Until the Arizona courts or the state legislature provide greater guidance as to the meaning and impact of the Act, employers will be operating in a state of uncertainty concerning their legal rights and obligations and those of their employees who are medical marijuana card holders. In the meantime, employers must take a common-sense approach to the issue and ensure they are making informed and measured decisions. Employers also should update their employee handbooks so that employees, supervisors, and managers are informed about what the Act does and does not require of employers.

If you have any questions regarding the Arizona Medical Marijuana Act or need assistance in revising your workplace drug policies, please contact Michael D. Moberly at (602) 440-4821, Charitie L. Hartsig at (602) 440-4898, or any other member of Ryley Carlock & Applewhite's Labor and Employment practice group.

[1] The other 14 states that provide some protection to medical marijuana users are California, Alaska, Oregon, Washington, Maine, Colorado, Hawaii, Nevada, Montana, Vermont, Rhode Island, New Mexico, Michigan, and New Jersey.

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