Medical Marijuana in the Workplace: An Employer’s Perspective
In November 2010, Proposition 203 was passed in the State of Arizona, which was an initiative to legalize the use of medical marijuana. The Arizona statute provides that “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 the person’s status as a medical marijuana cardholder or a registered patient’s positive drug test for marijuana components or metabolites. However, this law does not protect employees if the individual possessed or was impaired by marijuana at the workplace or during the hours of employment.
In light of the new Medical Marijuana Act (the “Act”), what are the obligations and responsibilities of an Arizona employer? First, only qualified patients are permitted to use medical marijuana. A qualifying patient is an individual who has been diagnosed with a debilitating medical condition by a physician. A debilitating medical condition includes the following: severe and chronic pain, cancer, positive status for HIV and AIDS, Crohn’s disease, glaucoma, Hepatitis C, seizures and persistent muscle spasms. Individuals with these and other “debilitating medical conditions” may become qualified by certification through a physician and receive a registry identification card from the Arizona Department of Health and Human Services for permitted use of medical marijuana.
However, the Act does not authorize any individual to smoke medical marijuana in a public place. The Act also does not authorize a qualified patient to use medical marijuana at the workplace or during the hours of employment. Furthermore, the Act does not require an employer to permit an employee to work while impaired by marijuana. The Act prohibits individuals from operating or being in control of any motor vehicle while under the influence of marijuana. Finally, the Act does not authorize any individual to undertake any task while impaired by medical marijuana that would amount to professional malpractice or negligence.
The Act does not expressly require that an employee disclose to his or her employer that he or she is using medical marijuana. In an employment position where drug testing is routinely performed, employers should provide job applicants and employees with an opportunity to disclose the use of medical marijuana before undergoing any such drug testing. An employer should keep in mind that, generally speaking, the Act prohibits an employer from discriminating against a potential or current employee based upon either: the individual’s status as a registered cardholder, or a registered qualifying patient’s positive drug test for marijuana components or metabolites. For the employer, there are two exceptions to this general rule:
- An employer is not required to continue an individual’s employment if the individual tests positive for marijuana components or metabolites, if the person possessed, used or was impaired by marijuana at the place of employment or during hours of employment; and
- An employer is not obligated to hire or continue to employ an individual who is a qualifying patient if to do so would cause the employer to lose a monetary or licensing benefit under federal law or regulation.
New issues and considerations are present for employers under the Act. Employers should consider reviewing and revising, as appropriate, their drug testing policies. In general, medical marijuana should be treated similar to any other prescription medications that may impair an employee’s ability to properly and safely perform his or her job.
Finally, the Act, like most states’ medical marijuana laws, does not directly address many of the employment issues created by an employee’s use of medical marijuana. Arizona employers must still comply with the requirements of the Occupational Health and Safety Administration (“OSHA”) and other regulations governing safety in the workplace, particularly where employees are operating heavy machinery or motor vehicles as part of their job responsibilities. However, the Act fails to provide sufficient guidance to employers concerning their rights and responsibilities in dealing with employees that are registered cardholders. Unfortunately, Arizona employers will continue to operate without answers in these areas unless and until the Arizona courts and/or the Arizona State Legislature supply direction on these issues.