Arizona Medical Marijuana and the Workplace – Let’s Get Out of the Weeds Already

Brief History of Medical Marijuana in Arizona

Even though times seem to be shifting quickly, recreational marijuana is still illegal under federal and Arizona state laws. You may recall, however, the notorious “Prop 203” from 2010, now known as the Arizona Medical Marijuana Act (“AMMA”), which makes it so that qualifying individuals with valid Arizona medical marijuana registry cards can receive up to 2.5 ounces of marijuana every two weeks from dispensaries, or, under some circumstances, cultivate up to twelve marijuana plants for their own personal medical use. Qualifying individuals, as defined by the act include individuals diagnosed with:

• Cancer
• Glaucoma
• Human Immunodeficiency Virus (HIV)
• Acquired Immune Deficiency Syndrome (AIDS)
• Hepatitis C
• Amyotrophic Lateral Sclerosis (ALS)
• Crohn’s disease
• Alzheimer’s disease
• A chronic or debilitating disease or medical condition or the treatment that causes:
  • Cachexia or wasting syndrome
  • Severe and chronic pain
  • Severe nausea
  • Seizures, including those characteristic of epilepsy, or
  • Severe or persistent muscle spasms, including those characteristic of multiple sclerosis

Remarkably, 85% of the individuals who obtained medical marijuana cards as of November 2017 qualified under the AMMA due to debilitating conditions related to the vague and overly broad category of “severe or chronic pain.” As you might expect, “severe and chronic pain” has become nearly synonymous with “recreational marijuana” among users.

The wording of the AMMA goes on to spell out additional rules related to the misuse of medical marijuana, stating that the AMMA “does not authorize any person to engage in, and does not prevent the imposition of any civil, criminal or other penalties for engaging in, the following conduct”[1]:

1. Undertaking any task under the influence of marijuana that would constitute negligence or professional malpractice.
2. Possessing or engaging in the medical use of marijuana:

• On a school bus.
• On the grounds of any preschool or primary or secondary school.
• In any correctional facility.

3. Smoking marijuana:

• On any form of public transportation
• In any public place

4. Operating, navigating or being in actual physical control of any motor vehicle, aircraft or motorboat while under the influence of marijuana, except that a 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.

As far as medical marijuana and the workplace are concerned, the first and the fourth type of conduct listed in the AMMA seem to be the most relevant to employees and employers.

What Should You, as an Employer, Know About Medical Marijuana Laws?

As an employer, you have to face the brutal fact that it is so much easier in this day and age for your employees to obtain marijuana than ever before—and in countless forms. Instead of smoking a blunt, marijuana use could come in the form of lotions, baked goods, oils, and even butter. As laws continue to become friendly to marijuana consumption, employers must to be especially mindful of changes in employee performance and indicators of intoxication. Here are a few questions and answers regarding your employees’ use of marijuana to help you become more informed on how to act as an employer in accordance with current Arizona law:

• Can an employer refuse to hire a job applicant because the applicant is a qualified and active medical marijuana cardholder?

Not usually. The AMMA actually prohibits more than just discrimination in hiring practices, clearly stating that “unless failure to so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person 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. While the exception for losing federal funding could apply, it generally has relatively little practical application for employers attempting to comply with the AMMA.

• Can an employer discipline an authorized medical marijuana user employee because they test positive for marijuana use?

Not necessarily. While Arizona law does not prohibit employers from testing their employees for the use of drugs, the AMMA disallows employers to penalize a registered qualifying medical marijuana patient-employee for a positive drug test for marijuana components “unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.” Additional evidence of impairment may include: negligence or carelessness, decreased coordination or dexterity, slurred speech, blood shot eyes, and/or a detectable marijuana odor on the employee. In sum, before making any rash decisions related to the employee’s conduct ask yourself:

• Did this employee use the marijuana (in any form) at work or while the employee was working?
• Did this employee possess marijuana (in any form) while at work?
• Was this employee impaired by the marijuana while working?

If the answer to any of the previous questions is yes, then it is probably appropriate to discipline the employee under Arizona law. It is important to note that these disciplinary actions do not always need to result in termination. In reality, you may see a benefit to giving an employee with a history of drug misuse a second chance.

• What happens if an employer fails to take disciplinary actions against an employee who tests positive for marijuana?

Even though the AMMA protects qualified individuals who use marijuana for medicinal purposes, that does not mean that an employer should allow marijuana use to adversely impact his or her business. In addition to other adverse impacts on the business, an employer who allows an employee to continue working after testing positive and manifesting impairment may be subject to potential civil liability to any party injured as a result of the employee’s inability to perform his or her job properly. If you have an employee who frequently becomes impaired because of his medical marijuana consumption away from work, you might want to consider discussing the problem with the employee, reassigning that employee to a different position, or possibly placing the employee on leave until he or she can properly perform the job.

• In light of the recent national and state push for medical and recreational marijuana use, what policies and procedures should you (the employer) develop and implement in your business?

As a potential answer for the current opioid crisis, legal issues surrounding medical marijuana are hot and only getting hotter. Though still illegal under federal law, state legalization of marijuana is widely inconsistent, with thirty states legalizing medical marijuana use and nine states legalizing recreational use. These inconsistencies, at virtually every level, make it difficult for HR professionals to create appropriate procedures and policies. Like any policies regarding emerging problems, employers must find a balance between maintaining a safe workplace environment and hiring great employees.

As an employer, you must also must take into consideration what laws your business generally operates under. For example, do you operate in multiple states? If so, one uniform marijuana policy will likely be insufficient, and state specific policies may need to be incorporated into your handbook. Additionally, your rules and policies regarding medical marijuana might change if your business operates predominantly under federal laws.

The obstacles that employers face today and the obstacles they will inevitably face moving forward are indefinite, especially if recreational marijuana is legalized in Arizona or at the federal level. Regardless of the specific policies you adopt, it is important to train your supervisors and apply marijuana related policies consistently. If you are drafting, interpreting, or enforcing marijuana related policies in your business, please do not rely on this article alone. Laws surrounding the use of marijuana are fairly new and developing rapidly despite relatively little guidance from the court system. If you are feeling stuck in the weeds, give Denton Peterson a call today.

[1] See A.R.S. 36-2802. Arizona Medical Marijuana Act; limitations.