Five Things Every Arizona Employer Should Know About Medical Marijuana

by Ryley Carlock & Applewhite
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1.  Employers are prohibited from disciplining an employee or refusing to hire a job applicant because the employee or applicant is authorized to use medical marijuana.

Subject to certain narrowly drawn exceptions, the Arizona Medical Marijuana Act ("AMMA") prohibits employers from discriminating against individuals who are authorized to use medical marijuana. The principal exception to this prohibition applies if the hiring or retention of a medical marijuana user would cause the employer to lose a monetary or license-related federal benefit.

This exception is widely viewed as a reference to the Drug Free Workplace Act, which imposes a drug-free workplace requirement on federal contractors and federal grant recipients. However, because the Drug Free Workplace Act only prohibits the unlawful use or possession of drugs in the workplace itself, the exception may have relatively little practical application for employers attempting to comply with the AMMA.

2.  Employers cannot discipline or refuse to hire an authorized medical marijuana user because the individual tests positive for marijuana use.

Although Arizona employers are not prohibited from testing their employees and applicants for the use of marijuana and other controlled substances, the AMMA protects authorized medical marijuana users who test positive for use of the drug from adverse employment action based solely on the positive test results.

Again, a theoretical exception exists for employers whose hiring or retention of such an individual would result in the loss of federal benefits. However, the Drug Free Workplace Act does not require employers to test their employees or applicants for illegal drug use, nor does it dictate the action an employer must take if an employee or applicant tests positive for the use of such a drug.

In addition, while drug use in safety-sensitive industries such as mining and transportation is subject to additional federal regulation, those regulations generally do not mandate employee or applicant drug testing, and while violations of the regulations may subject employers to fines and other penalties, they generally do not subject employers to the loss of any federal benefits. Hence, the AMMA exception again appears to have little if any practical significance in this situation.

3.  An employer can discipline an employee who tests positive for marijuana use, even if the employee is authorized to use medical marijuana, if there is additional objective evidence that the employee possessed or was impaired by the drug while at work or during working hours.

Additional evidence of workplace impairment may include involvement in a workplace incident that appears to reflect negligence or carelessness, decreased coordination or dexterity, slowed or slurred speech, glassy or blood shot eyes, and/or a detectable odor of marijuana.

4.  Employers are not required to permit their employees to use or possess marijuana for any purpose on the employer's premises or during working hours.

The AMMA specifically states that employers are not required to allow the ingestion of marijuana in their workplaces, and authorizes employers to discipline employees who do so. The AMMA also allows employers to "discriminate" against medical marijuana users who test positive for the use of marijuana if they used or possessed the drug on the employer's premises or during their working hours.

5.  The impairing effects of marijuana have been shown to last for up to 48 hours after ingestion.

The fact that an employee's off-duty use of medical marijuana may be protected under state law does not alter the fact that such use may have adverse and occasionally even catastrophic workplace consequences. An employer who allows an employee to continue working after testing positive for marijuana may be placing the employee, the employee's coworkers, and innocent third parties at risk, thereby subjecting itself to potential civil liability to those who may be injured as a result of the employee's inability to work safely.

One relatively unsatisfactory potential response to this dilemma is for the employer to relieve employees who test positive for marijuana from any safety-sensitive duties until they can establish their ability to perform those duties through, for example, a subsequent "negative" drug test. The obvious inefficiency of this potential "solution" is merely one example of the difficulties employers face in attempting to comply with the AMMA.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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