The Arizona Medical Marijuana Act (MMA) on its face prohibits employers from discriminating against registered medical marijuana users and card holders in making employment decisions. It prohibits employers from taking action in most cases against medical marijuana users. Because of the broad language in Arizona’s MMA, the Arizona Legislature on behalf of employers recently passed a new law that was signed by Governor Brewer, for employers who have employees who hide behind the MMA. The new law provides employers with several protections against claims of wrongful termination and discrimination when taking action against those employees using marijuana or other prohibited substances.
An employee using medical marijuana can become a card holder by obtaining a certificate under the direction of a physician and then that employee’s use of marijuana would not constitute use of an illicit substance because the employee would be using it as qualifying medical treatment.
First of all, what is impairment? Impairment is broadly defined as any indication that drugs or alcohol may decrease or lessen the employee’s performance of the duties or tasks of the employee’s job description. Factors such as the employee’s speech, appearance, clothing, odor, and behavior may be considered in concluding an employee is impaired. Under the new law an employer may discipline an employee or take other actions if the employer has a reasonable, good faith belief that the employee used or possessed drugs or was impaired in the work place.
In a very poorly worded and hastily enacted law, Arizona became the 15th state in the nation to allow the use of marijuana for medical purposes. However, the voters did not think through the consequences of passing the medical marijuana act.
As a consequence, employers have been forced to redefine and protect themselves against employees who may be using marijuana in the work place.
To make matters worse, now in family court, the discrimination provision of A.R.S. 36-2813 currently states that no person may be denied custody of or visitation or parenting time with a minor, and there is no presumption of neglect or child endangerment for conduct allowed under this chapter. So imagine a parent who is under the influence of marijuana but has obtained, however questionable, a card allowing their use of medical marijuana to parent a child and have parenting or visitation time. This will only create further family court disputes and litigation, in addition to employment disputes when one parent, questions the fact that the ex-spouse is using marijuana and is under the influence during their weekend visitation time.
Wouldn’t it have been better to recognize what we all know, that alcohol and/or marijuana use is not conducive to proper parenting and is not a positive influence at the office? That would have been much simpler. Now, one law has to be enacted to protect us from another law, and then one statute has to be re-written to draft around the unintended consequences of passing a very sloppy and ill worded proposition just so a few people in Arizona could justify and rationalize using marijuana.
If you have questions or concerns about any family law issues facing your family, please call me at (480) 833-1113.
Attorney Profile: Paul S. Rowley, Managing Partner