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New Medical Marijuana Law Raises Questions, Creates Potential Pitfalls for Arizona Employers


By Christopher A. Schmaltz, Attorney, Gust Rosenfeld P.L.C.

Arizona employers are already overwhelmed by copious workplace issues, challenges and drama. Recently, an employer's job became even more complicated with the passage of Proposition 203-the Arizona Medical Marijuana Act (the "Act").

The Act makes it legal in Arizona for individuals to qualify to receive and use marijuana to treat a variety of medical ailments. Keep in mind that the use and distribution of marijuana is illegal under federal law, and it remains illegal under Arizona law outside the context of this new law.

All this has important implications for employers and employees alike. In this article, I examine several key provisions of the Act impacting the workplace.

Provisions Protecting Employees
The Act states: "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."

This provision in the new law prevents employers from firing an employee who is a registered qualifying patient receiving and using marijuana for medical purposes.

An employer can take disciplinary action if the employee is caught doing the drug at the worksite and/or is determined to be under the influence during work hours. The Act further states that a registered qualifying patient cannot be considered "under the influence of marijuana solely (my emphasis) because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment."

The litigation spawned by the phrase "in insufficient concentration to cause impairment" will be legion. It is unclear who will have the burden of proving use, possession or impairment, but given the law's provisions, it will likely fall to the employer.

Provision Offering Some Protection for Employers
The new law says: "No school, landlord or employer may be penalized or denied any benefit under state law for enrolling, leasing to or employing a registered qualifying patient or a registered designated caregiver."

What this provision purports to do is provide some comfort to employers who are concerned about their employees, now or in the future, qualifying as a patient who can legally receive and use medical marijuana and/or qualifying as a caregiver who can supply medical marijuana to qualifying patients.

This provision is limited to "state law" and offers no protection under federal law. Given that the state law and federal law are at clear odds with each other, employers should be cautious in their handling of this issue.

More Issues Involving Federal v. State Law
Arizona's new law also raises questions and potential consequences for Arizona-based employers whose businesses rely on or benefit from federal contracts, federal grants and/or federal licensing. There is a real risk that the federal government could pull these associated benefits from the employer for violating federal law regarding marijuana use.

However, in October 2009, the Justice Department issued a memorandum suggesting that federal prosecutions related to medical marijuana use and distribution may be limited; this may sound like good news, but employers should proceed with caution because any possible prosecution or workplace drug-related review is subject to the federal government's discretion.

For More Information
If, as an employer, you take nothing from this article except that the Arizona Medical Marijuana Act means great complexity for you, I have succeeded in my mission.

At the very least, you would be wise to examine the new law and review your employment practices and documents for any issues raised for your workplace by this new law.

If you have questions and/or need sage advice on this issue, contact Rob Haws, our firm's resident employment law guru.

Robert D. Haws - 602.257.7976 - rhaws@gustlaw.com
Rob practices in the area of employment law.

Christopher A. Schmaltz - 602.257.7480 - cschmaltz@gustlaw.com
Chris practices in the area of government law.

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