By: Thom K. Cope
In 2010, Arizona voters approved the use of marijuana for medicinal purposes in the Arizona Medical Marijuana Act (AMMA), effective in the spring of 2011. As of January 27. 2012 the Arizona Department of Health has issued 19,430 medical marijuana cards. Only eight people have been turned down! By far the greatest qualifying condition has been “chronic pain”(87%), followed by “muscle spasms” (14%) and “nausea” (12%). The largest age group issued cards is the18-30 group (24%), followed closely by 51-60 year olds (23%).
Employees, who are in the prime of their working years, are securing cards and they are working for you! Therefore, it is critical that you understand both your rights and your responsibilities. First, it is important to understand that you may not treat cardholders differently just because they have a card. In fact, you are prohibited from asking if they have been issued a card. To do so would violate both the AMMA and the Americans with Disabilities Act (ADA). The conditions for which one may get a card (glaucoma, cancer, aids, seizures, Alzheimer’s, HIV, chronic pain, etc), are qualifying conditions under the ADA and therefore you cannot inquire into the specifics of any medical condition unless it is directly related to performing the essential functions of the job.
Second, the law prohibits you from discriminating or treating any employee or applicant differently just because they have a card or fail a drug test. If an employee fails the drug test, and they have a card, they may not be disciplined unless they were “impaired” on the job site. You may have to give reasonable accommodation to a person that qualifies for a card under the ADA.
Now for the good news! No employee may use or possess marijuana on any worksite, employer premises, or customer/vendor premises. Nor may any employee be impaired by marijuana on the employer’s property or a customer’s premises, even if they ingested it before coming to work. You have the right to discipline (up to termination) an employee for violating these rules: If you have a “good faith” belief that any of the above has occurred. Good faith is defined as “observed conduct, behavior or appearance; electronic or verbal statements from a reliable ‘snitch’ (witness); visual confirmation of possession of paraphernalia, etc.” Impairment is defined as “diminished capacity for: speech, walking, standing, physical dexterity, agility, coordination, etc.” You may also use body odor, or irrational or bizarre behavior as indicators of impairment. Since these are subjective, it is always best to have another manager confirm your observations. Remember! Just failing the drug test is not an indication of impairment!
Finally, you may designate certain jobs as “safety sensitive,” requiring that employees in those jobs not be cardholders. These are jobs where the employee may be operating a motor vehicle, machinery or handing food or medicine.
The best method of protection for you and your business is by establishing a strong employee drug use/medical marijuana policy in your handbook. Enlist an attorney familiar with this area to assist you in drafting a comprehensive policy.
To learn more about employer rights related to medical marijuana law, or for legal services in other labor and employment related matters contact Tucson lawyer, Thom K. Cope at Udall Law Firm, LLP.
©2012 All rights reserved. Articles and other postings on this website are only for the purpose of providing readers with updates on topics of interest relating to the Udall Law Firm, LLP and/or the law. Nothing on this website (articles, postings or other content) should be considered or construed as providing legal advice or a legal opinion, or as offering, establishing or memorializing the existence of an attorney-client relationship with Udall Law Firm, LLP or any of its attorneys. If you are in need of legal advice, or have any other questions, please contact Udall Law Firm, LLP.