Thursday, June 9, 2011

Qualified Patients Can Use, Possess, Transport Marijuana Anywhere it is Not Prohibited

The Arizona Medical Marijuana Act (AMMA) contains provisions about what state law enforcement personnel, employers, schools, landlords, and nursing homes, assisted living facilities, and the like cannot do to Qualified Patients (QP).  The AMMA also has provisions setting out what it doesn’t authorize relating to medical marijuana.  It is only by negative implication that it becomes clear what a QP can do to obtain the medical benefits of marijuana.

Arizona Revised Statutes § 36-2802 states that it does not authorize:
  • Doing any task under the influence that would constitute negligence or professional malpractice.
  • Possessing or using medical marijuana on any school bus, school or correctional facility.
  • Smoking marijuana on any form of public transportation or in any public place.
So by negative implication, a QP can injest edible marijuana – say eat a marijuana brownie – on the Phoenix
Metro LightRail.

The same statute also says that it does not authorize operating any motor vehicle, aircraft or motorboat while under the influence of marijuana.  It defines what being under the influence means only by negative implication – it is not “solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.”    

It boils down to this – a QP can smoke medical marijuana only on private property where it is not otherwise lawfully prohibited.  Nursing homes, assisted living facilities and the like can only impose reasonable restrictions on the use of medical marijuana.  A QP also can possess and ingest medical marijuana other than by smoking – on private property as well as the public streets – anywhere that it is not prohibited.

Also by negative implication, the AMMA says what it does not require in A.R.S. § 2814.
  • No private health insurer or government assistance program has to reimburse a QP for the costs associated with medical marijuana use.
  • No one is required to allow the use of medical marijuana on that person’s private property.
Most important for Arizona employers, they are not required:
  • To allow ingestion of medical marijuana at work.
  • To allow any employee to work under the influence of marijuana.
But again, “under the influence” is limited by the statement that the presence of marijuana components “in insufficient concentration to cause impairment” is not a basis for finding that an employee is under the influence at work.

The provision concludes with the statement that the AMMA does not prohibit an employer from disciplining an employee for ingesting marijuana in the workplace or working while under the influence of marijuana.

Employers will need to revise their health insurance plans and employment policies to ensure that they contain suitable policies for medical marijuana in their workplaces.  In the absence of clear policies, your employees will have an argument that there was no reason for them to think you did not want them consuming marijuana brownies in your breakroom as soon as they ended their shift for the day.

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