Friday, March 25, 2011

Client Alert: The Arizona Medical Marijuana Act Presents Issues for Employers

On November 2, 2010, Arizona voters approved, by a very narrow margin, Proposition 203, the Arizona Medical Marijuana Act, legalizing marijuana for medicinal purposes. Arizona is the 15th state to pass medical marijuana legislation.

The Arizona Medical Marijuana Act (the "Act") permits a "qualifying patient" with a "debilitating medical condition" to obtain marijuana from a registered non-profit medical marijuana dispensary and to use the marijuana to treat or alleviate the medical condition. A "qualifying patient" is a person who has been diagnosed by, and received written certification from, a physician as having a debilitating medical condition and would likely benefit from the medical use of marijuana to treat or alleviate the medical condition. This client alert highlights some of the major implications for employers.

The Act prohibits employers from discriminating against a prospective or current employee who is a registered "cardholder" because of (1) the person's status as a cardholder or (2) as a result of the registered qualifying patient's testing positive for marijuana through a drug screening. While only a qualifying patient may use medical marijuana, other individuals may also be "cardholders" subject to some of the protection from discrimination. Under the Act, a registered "cardholder" may be (1) a qualifying patient, (2) a designated caregiver, or (3) a nonprofit medical marijuana dispensary agent who has been issued and possesses a valid registry identification card by the Arizona Department of Health Services or its successor agency.

The Act does create two limited exceptions to this anti-discrimination provision. First, there is an exception for employers who would "lose a monetary or licensing related benefit under federal law or regulations." Second, an employer is not required to hire or continue to employ a registered qualifying patient 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. The Act specifically provides that it does not authorize any person to undertake any task under the influence of marijuana that would constitute negligence or professional malpractice. Further, the Act does not authorize any person to operate, navigate or be in actual physical control of any motor vehicle, aircraft or motorboat while under the influence of marijuana, although, under the Act, a registered qualifying patient shall not be considered to be under the influence solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment. Thus, employers may still take action against employees who use marijuana in the workplace or who work while impaired by marijuana.

By April 2011, the Arizona Department of Health Services is required to begin accepting applications for marijuana registry identification cards. Thus, Arizona employers should review the Act and then review and revise their policies to address the provisions of the Act. Employers should also consider conducting updated training of managers, supervisors, and safety and HR personnel.

If you have any questions about the Act's impact on employers, or would like assistance with evaluating and revising policies, our labor and employment attorneys are available to assist you.

Each case an employer may face is unique and may require legal advice. If you need further information regarding the Arizona Medical Marijuana Act, please contact the author, Jan Hutchison, or one of the other attorneys in our Labor and Employment Department.

Janet Hutchison is a commercial transactional attorney and litigator whose practice focuses on the areas of labor and employment, real estate and general business matters. Ms. Hutchison has extensive experience in employment matters, including discrimination, wrongful discharge and wage and hour matters. She frequently advises clients on employment policies and procedures and represents employers in federal and state court litigation, as well as before the various administrative agencies. Read more... Contact Ms. Hutchison at or 602.262.5945.