Arizona Voters Pass Medical Marijuana Proposition; Employers Should Prepare to Comply

 
Monday, January 3, 2011
 

by Jackson Lewis

By a margin of just 4,341 votes, Arizona voters decided to make their state the fifteenth to allow the use of medical marijuana.  The “Yes” vote on Proposition 203 had trailed for nearly a week following Election Day, but made a surprising comeback as absentee and provisional ballots were counted.  The measure was opposed by the Arizona Chamber of Commerce and other business groups. 

Prop 203 will become effective once it is signed by Governor Jan Brewer, which is expected sometime after November 29, 2010, the date the election results become official.  The Arizona Department of Health Services (“DHS”) will then have 120 days to prepare regulations to implement the medical marijuana initiative.  DHS expects to release an initial draft of those regulations on December 17, 2010, followed by a period for public comment.  It is not yet known whether the DHS regulations will provide much needed guidance on Prop 203’s employment provisions.

Prop 203 will enable a “qualifying patient,” who is registered with the Arizona Department of Health Service, to legally obtain an “allowable amount of usable marijuana” from a “nonprofit medical marijuana dispensary” and possess and use the marijuana to treat or alleviate symptoms associated with a “debilitating medical condition.”  Arizona residents with a wide variety of “medical conditions,” including muscle spasms and patient-defined symptoms such as pain and nausea, would be eligible to obtain marijuana for medicinal purposes. 

Employment Provisions

Unlike medical marijuana statutes in a number of other states, such as California, Prop 203 includes provisions that specifically address workplace issues and provide registered users of medical marijuana with certain workplace protections.  Prop 203 contains the following provision, which specifically prohibits discrimination by employers:

Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either:

  1. The person’s status as a cardholder.
  2. A registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.

A.R.S. § 36-2813. 

Marijuana or its metabolites can linger in the body for a considerable time and although Prop 203 seems to require that the employer demonstrate that an employee who has tested positive for marijuana “was impaired by marijuana on the premises…or during the hours of employment,” Prop 203 does not make clear how an employer may demonstrate this “impairment.”  Must an employer establish this by showing reliable, contemporaneous observations of the employee’s speech, behavior, and appearance at work, that this deficit is consistent with demonstrated marijuana usage, and that it is not the result of some other cause?  If so, this can be a heavy burden for employers.  On the other hand, Prop 203 also contains language suggesting at least some positive test results might be enough to demonstrate impairment.

Prop 203 includes a separate provision allowing employers to discipline employees who ingest marijuana in the workplace or who “work while under the influence of marijuana.”  This provision states, however, that “a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.”  It at least implies that a sufficient cutoff concentration alone might support a conclusion of being under the influence at work, and therefore, justify discipline. But it does not define the “sufficient concentration to cause impairment.”  (Would the federal government’s marijuana test cutoff levels suffice?)   Incredibly, however, Prop 203 again does not define the term “impair” or expressly equate it with “being under the influence.”  Much needs to be clarified. 

Prepare to Comply with Prop 203

Employers should get ready for the many challenges that they will face when Prop 203 becomes effective.  As an initial step, employers should review their drug testing policies to ensure that they comply with the provisions of Prop 203.  Testing should be based on a properly designed and published policy.

Moreover, employers also must be prepared to handle the many issues created by the non-discrimination and employer’s rights provisions of the Proposition.  For example, under A.R.S. § 36-2813, if a registered qualifying patient tests positive for marijuana components or metabolites, the employer will not be permitted to take any disciplinary action against the employee unless it could establish that the employee “used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.”  In dealing with a positive test result, employers must also make sure that they stay within the medical-inquiry restrictions placed upon them by the Americans with Disabilities Act.

Finally, employers should review their search policies to assure the means to investigate whether an employee possesses marijuana in his or her locker, desk, other facilities or possessions, upon reasonable suspicion where necessary.  In the absence of clarification in the upcoming DHS regulations, Prop 203’s possession criterion may be simpler to apply than its thorny “impairment”-based provisions. 

With strong opposition from a number of groups, including every sheriff and county attorney in Arizona, a lawsuit may be filed challenging Prop 203. 

Jackson Lewis attorneys will continue to monitor developments relating to Arizona’s new medical marijuana statute and will provide regular updates.  They are available to assist employers in developing and implementing substance abuse testing policies.

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