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:
-
The person’s status as a cardholder.
-
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.