Medical Marijuana Dispensaries Are Now Operating in Arizona

by Littler
Contact

On December 3, 2012, an Arizona Superior Court judge issued an order holding that the federal Controlled Substances Act (CSA) does not preempt the Arizona Medical Marijuana Act. Three days later, the first medical marijuana dispensary opened in Arizona. 

The regulations of the Arizona Medical Marijuana Act (AMMA) divide the state into 126 Community Health Care Analysis Areas (CHAAs), and each CHAA is allowed one medical marijuana dispensary. In White Mountain Health Center Inc. v. Maricopa County, Arizona Department of Health Services, the plaintiff, a medical marijuana dispensary, requested an injunction against defendants Maricopa County and the Arizona Department of Health Services (ADHS). The dispensary alleged Maricopa County improperly denied it the zoning documentation necessary to operate a medical marijuana dispensary within its CHAA, and the ADHS improperly denied its application for a medical marijuana facility due to Maricopa County's refusal to provide zoning documentation. 

In their defense, Maricopa County and the ADHS argued that the AMMA is preempted by the CSA and, therefore, the AMMA is unconstitutional. The defendants argued that the AMMA stands as an "obstacle" to the full purpose and objectives of Congress and that it is "physically impossible" to comply with both federal and state law. The court disagreed. It held that the AMMA did not interfere with the federal government's ability to enforce the CSA and it does not conflict with the purpose of the CSA. The court also held that requiring Maricopa County to confirm zoning compliance was not aiding and abetting illegal conduct, so it was not physically impossible to comply with both the CSA and the AMMA. 

As a result, the court granted the dispensary's request for an injunction and ordered Maricopa County to confirm zoning compliance so the White Mountain Health Center could submit its completed medical marijuana dispensary application to the ADHS. Three days later, the first Arizona dispensary opened its doors, and others will soon follow. 

What This Means for Employers

There are currently more than 30,000 medical marijuana cardholders in Arizona. The majority of these cardholders requested the ability to cultivate their own medical marijuana because there were no operating dispensaries. Now, dispensaries are beginning to open, giving cardholders the opportunity to purchase medical marijuana. With the dispensaries opening, it is anticipated that the number of cardholders will increase. 

Employers should ensure that their drug-testing policies are updated to comply fully with the Arizona Drug-Testing of Employees Act to take advantage of the safe harbors that are provided. Specifically, the safe harbors provide that no cause of action can be brought against an employer who has established a policy and initiated a testing program in accordance with Arizona law for certain actions. Such actions include: 

  • Actions in good faith based on the results of a positive drug test or alcohol impairment test;
  • Failure to test for drugs or alcohol impairment or failure to test for a specific drug or other controlled substance;
  • Failure to test or, if tested, to detect any specific drug or other substance, any medical condition or any mental, emotional, or psychological disorder or condition;
  • Termination or suspension of any substance abuse prevention or testing program or policy;
  • Actions based on the employer's good faith belief that an employee used or possessed any drug while on the employer's premises or during hours of employment;
  • Actions based on the employer's good faith belief that an employee had an impairment while working while on the employer's premises or during hours of employment; and
  • Actions to exclude an employee from performing a safety-sensitive position, including reassigning the employee to another position or placing the employee on paid or unpaid leave, based on the employer's good faith belief that the employee is engaged in the current use of any drug, whether legal, prescribed by a physician, or otherwise, if the drug could cause an impairment or otherwise decrease the employee's job performance or ability to perform the employee's duties. 

Additionally, employers should update policies prohibiting employees from being impaired at work and from possessing or using medical marijuana at work, as well as policies prohibiting discrimination based on an employee's status as a medical marijuana cardholder. Most notably, companies that require pre-employment drug testing must develop a legally compliant action plan for applicants who test positive for marijuana and present a valid AMMA card. Applicants using medical marijuana do not need to be placed into safety-sensitive jobs; however it is unlawful to automatically disqualify all applicants from employment consideration based on a positive test without conducting a proper analysis of the types of jobs available within the company that may accommodate off-duty medical marijuana use.

Neil Alexander is a Shareholder, and Kristy Peters is an Associate, in Littler Mendelson's Phoenix office. If you would like further information, please contact your Littler attorney at 1.888.Littler or info@littler.com, Mr. Alexander at nalexander@littler.com, or Ms. Peters at kpeters@littler.com.

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.

© Littler | Attorney Advertising

Written by:

Littler
Contact
more
less

Littler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.