This article appeared in the April 2011 issue of "The Construction Advisor" published by Lang Baker & Klain, PLC. Free Subscription to the Construction Advisor View the Construction Advisor index

The Arizona Medical Marijuana Act, which voters approved in November, allows a qualifying patient to obtain marijuana from a registered medical marijuana dispensary and use it to treat, or ease the pain caused by, a debilitating medical condition. On April 14, the Arizona Department of Health Services (DHS) was scheduled to begin accepting applications for marijuana registry identification cards that allow a cardholder to possess and use marijuana legally.

Predictably, complying with the Act poses new challenges to employers, particularly in the areas of drug-testing and determining whether a worker is impaired while on the job.

In a nutshell, employers are prohibited from discriminating against a prospective or current employee who is a registered cardholder. Further, a worker who has a State-issued card cannot be fired or otherwise disciplined solely for testing positive on a drug test; if a cardholder tests positive for marijuana, the presumption is that the marijuana use was for medical purposes, not recreational. Further, a cardholder will not be considered to be under the influence solely because of the presence of metabolites or components of marijuana at levels that would not cause impairment.

Thus, in the wake of the new law, one of the first things most employers would be wise to do is review their company’s employee manual and other written policies regarding drug and alcohol use, and to make appropriate revisions so that, in response to substance testing, they don’t take employment action that would be considered discriminatory.

Exceptions

The Act provides two limited exceptions to the anti-discrimination provision:

• First, there is an exception for employers that would “lose a monetary or licensing related benefit under federal law or regulations” if a cardholder-employee is not terminated or disciplined.

• Second, an employer is not required to hire or continue to employ a cardholder who tests positive for marijuana components or metabolites, if the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.

The Act does not allow employees to use marijuana at the workplace, nor does the immunity from being discharged apply to a worker who is “impaired.’’ The law does not authorize any person to undertake any task under the influence of marijuana that would constitute negligence or professional malpractice. Further, it does not authorize any person to operate, navigate or be in physical control of any motor vehicle, aircraft or motorboat while under the influence of marijuana. Thus, employers may still take action against employees who use marijuana in the workplace or who work while impaired by marijuana.

Proving Impairment

The problem is this: If you believe a cardholder-employee is impaired by marijuana use while on the job, the burden is on you to show that they are impaired. The testing for that impairment is relatively sophisticated and expensive, and there appears to be no readily available scientific measurement of impairment for marijuana as there is for alcohol.

This creates a Catch-22 of sorts for employers: You don’t want to be sued for wrongful termination, and you don’t want an impaired employee to create a situation in which you cannot fulfill your OSHA-imposed duty to "provide a workplace free of recognized hazards that could cause serious injury."

Legislative Clarification

The Arizona legislature has provided some help to employers, courtesy of H.B. 2541, which was passed in the closing days of the 2011 session. That legislation lets employers remove from a safety-sensitive job, without fear of litigation, an employee who they believe is impaired. (Contracting, because it requires a license granted by the State, is defined as a “safety-sensitive” occupation.) H.B. 2541 also allows employers to use the DHS database to "verify a registry identification card that is provided to the employer by a current employee or by an applicant who has received a conditional offer of employment."

Under H.B. 2541, good-faith efforts to determine impairment include:

• observed conduct, behavior or appearance;

• information reported by a person reasonably believed to be reliable;

• written, electronic or verbal statements;

• lawful video surveillance;

• records of government agencies, law enforcement or courts;

• results of a test for the use of alcohol or drugs; or

• other information reasonably believed to be reliable or accurate.

The trick here is that employers may have to get training for supervisors of workers in safety-sensitive jobs, so that they can recognize symptoms of impairment and take appropriate action.

Contact an Employment Lawyer

Please note that none of the attorneys at this firm practices in the employment law area, and we are not qualified to offer legal advice on this important topic. The purpose of this article is to, first, alert you to at least some of the employment-related issues that could evolve out of implementation of the Arizona Medical Marijuana Act and, second, encourage you to seek the advice of an experienced employment lawyer. If you need a referral, we can provide you with names of lawyers who we believe would meet your needs.