Medical Marijuana Law Raises New Challenges for
Drug-testing policies, presumptions of on-the-job
impairment, and job-site safety are three
of the issues that many employers must address
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.
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
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
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.
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."
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:
behavior or appearance;
by a person reasonably believed to be reliable;
or verbal statements;
records of government
agencies, law enforcement or courts;
results of a test for
the use of alcohol or drugs; or
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.