Thursday, June 30, 2011

Pot on the Premises – A New Dilemma for Arizona Employers, Part II

In the June 24 post, I concluded that the language and structure of the Arizona Medical Marijuana Act (AMMA) could support an argument that Arizona employers do not have the right to prohibit the Qualified Patients (QP) or Designated Caregivers (DC) among their work force from bringing marijuana to work, so long as they do not smoke or ingest it on the premises.  The AMMA is not the only relevant source of law, however.

Marijuana still is a Schedule I controlled substance under the Federal Controlled Substances Act, meaning that it is unlawful to possess marijuana under federal law.   That is the central legal conflict that has propelled state and federal officials into litigation and stalled the dispensary application process, as I have reported in earlier posts.

There is also always an issue as to who is the possessor of the illegal drug, such that in a criminal context, several people could be charged with drug crimes in connection with a single stash.  So, for example, if police serve a warrant at an office where the property owner and two other people work and find marijuana, all three of them could be in legal jeopardy.

For this reason alone, I believe employers have a legal right as possessors of the real estate that makes up their workplaces to prohibit their employees from bringing marijuana onto the premises.  The extremely legitimate interest in avoiding criminal liability ought to give an employer a right to say, “Don’t bring any marijuana onto the premises,” so long as it remains unlawful under federal law.

Again, however, this is not the end of the inquiry.  In future posts, I’ll take a look at whether banning employees from bringing marijuana on the premises could give QPs and DCs a claim of unlawful discrimination under the AMMA.

Monday, June 27, 2011

Pot-Smoking Ban in ‘Public Places’ Includes Most Workplaces

In Friday’s post, I began what promises to be several days’ exploration of Arizona employers’ new dilemmas regarding pot on their premises.  I mentioned one of the few clear directives of the Arizona Medical Marijuana Act (AMMA) – smoking marijuana is prohibited in any public place, even by Qualified Patients (QP) with state licenses to use the weed for medicinal purposes.

While the AMMA does not define what is a public place, the regulations issued by the Arizona Department of Health Services (ADHS) contain a detailed definition.   Most – but not all – workplaces are going to be within the definition of a public place.

According to the regulation, a public place is “any location, facility, or venue that is not intended for the regular exclusive use of an individual or a specific group of individuals.”  If it is someplace where the public or selected portions of the public regularly are invited in, it is likely to be a public place. 

The rule goes on to provide a comprehensive list of examples:  airports, banks, bars, child care facilities, common areas of apartment buildings, condos and other multi-family housing, educational facilities, entertainment facilities or venues, hotel and motel common areas; laundromats; libraries, office buildings, parking lots, parks, reception areas, restaurants, retail food production or marketing establishments, retail stores, shopping malls, sidewalks, sports facilities, theaters, and waiting rooms.

Also on the list are most health care institutions, except for nursing care institutions, hospices, assisted living centers and homes, adult day health care facilities, and adult foster care homes.  In those few health care facilities, QPs among the patients must be allowed reasonable access to use marijuana – unless allowing such access would cause the facility to lose a monetary or licensing-related benefit under federal law or regulations.  Even those facilities are allowed – but not required – by the AMMA to insist that marijuana be consumed by a method other than smoking.

So when the AMMA says that smoking marijuana is not authorized in any public place, that encompasses a lot of private property in Arizona.  Most of the state’s workplaces, in fact.

This means that even the most compassionate employer who believed in the efficacy of medical marijuana and wanted to allow any QP among its employees the most possible legal access still could not allow smoking medical marijuana in an Arizona workplace.  Unless, perhaps, the compassionate employer operates a nursing care institution, hospice, assisted living center or other similar health care facility.

Friday, June 24, 2011

Pot on the Premises – A New Dilemma for Arizona Employers

Before the voters adopted the Arizona Medical Marijuana Act (AMMA) in November 2010, Arizona employers did not have to think about whether they needed or wanted a policy prohibiting employees from bringing marijuana into the workplace. 

Marijuana possession was illegal under both state and federal law.  As a general rule, employers don’t need to have a policy that says:  Don’t bring stuff that is illegal to work.

Now, however, marijuana possession is legal under state law for Cardholders, which Arizoneout readers know includes for the moment Qualified Patients (QP) and Designated Caregivers (DC).  As of June 15, 2011, there were more than 5,600 QPs and nearly 150 DCs.

This presents two big dilemmas for Arizona employers:  (1) Can we adopt a policy prohibiting marijuana on the premises and (2) should we prohibit marijuana on the premises?  Today’s post will look specifically at what the AMMA says about the first question, and I will continue to explore these two dilemmas over the next several posts.

The AMMA does not state directly whether employers can prohibit marijuana on their premises.  The Act says that smoking marijuana is prohibited in any public place.  A.R.S. § 36-2802(B).  It also states that employers are not required to allow “the ingestion of marijuana in any workplace.”  A.R.S. § 36-2814(3).

Thus, based solely on the language of the AMMA, there is an argument that Arizona employers do not have the right to prohibit Cardholders from bringing marijuana to work, so long as they do not smoke or ingest it on the premises.  Whether that argument will be adopted by the courts as the authoritative interpretation of the AMMA remains to be seen.

Wednesday, June 22, 2011

Big Picture Perspective on Medical Marijuana

My husband Rick, who is a retired newspaper editor, read through all of the posts on Arizoneout over the weekend.  Ever mindful of the reader’s perspective, he raised a concern.  He thought that employers reading the blog might be impatient to get more of an overview of the Arizona Medical Marijuana Act’s (AMMA) implications for them, and want some practical advice on what they should be doing immediately.

Through Arizoneout, I have been trying to break the AMMA down, considering each relevant aspect of the law that may impact the workplace.  Starting at the beginning, as I did with the June 1, 2011 post, means it is going to take a while to get through all aspects of the law employers need know.  Once the foundation is laid, I expect that most posts in Arizoneout will offer practical advice, tips to avoid liability, and best practices.

In my articles on the AMMA for the Arizona Employment Law Letter, I have taken a different approach, providing more of an overview and highlighting the broad areas that employers need to address.  So I thought having those articles available to Arizoneout readers might give employers eager to grasp the big picture a valuable resource. 

Thanks to the good folks at M. Lee Smith Publishers, LLC, I am able to make those articles available as part of this blog, when they otherwise would be available only to paid subscribers.

So if you are interested, you can read the December 2010 article, “Arizona voters approve medical marijuana law;” the March 2011 article, “Countdown to date when workers can get high legally is still uncertain;” the April 2011 article, “Bill to help you navigate change in law speeds through legislature;” and the June 2011 article, “New law shields employers with compliant drug-testing policy.”

Monday, June 20, 2011

Small Employers Can’t Ignore Medical Marijuana Implications

The Arizona Medical Marijuana Act (AMMA) applies to every employer in the state, even those that have only a single employee.  That may come as a shock to small businesses, who are accustomed to thinking that they are not subject to various state and federal laws prohibiting discrimination or otherwise regulating the employer-employee relationship.

Unlike the Arizona and federal civil rights acts, which do not cover small businesses having fewer than 15 employees, the AMMA does not even define the term “employer.”  But all state “employers” are subject to the AMMA’s prohibition on discrimination against Cardholders, which includes both Qualified Patients (QP) and Designated Caregivers (DC), unless they would lose a federal monetary or licensing related benefit.  (Much more to come on what that exception means in future posts.)

The tests for whether one is an employer are highly fact specific, and also can vary depending on the reason for the inquiry.  Courts in Arizona probably will be making decisions on who is an employer subject to the AMMA for the next decade, if not longer.  Until that happens, there is going to be some uncertainty as to whether a particular business relationship is an employer-employee one.

For small businesses who want to err on the side of caution in the meantime, they should consider that anyone for whom they remit payroll taxes to the IRS likely enjoys the protections of the AMMA.

Friday, June 17, 2011

A Humble Word of Praise

I don’t know Arizona Department of Health Services (ADHS) Director Will Humble.  I have never met him, I don’t know his politics, or anything about him other than what I have learned from viewing videos on his website, reading news reports about him, and following his blog posts on the Arizona Medical Marijuana Act (AMMA).

He’s catching a lot of heat these days.  He’s a defendant now in two lawsuits.  From my perusal of various medical marijuana advocacy websites (to which I won’t link because the content is such a mixed bag of propriety levels), Director Humble is getting tagged with the hypocrite label along with Governor Jan Brewer and Attorney General Tom Horne.  The common outcry on those sites is that all three state officials are interfering with the will of the voters, to whose mandate they usually trumpet their loyalty.

Director Humble did oppose Proposition 203.  But he seems genuinely wounded by the hypocrite allegation.  In a June 14 blog post, he protested that ADHS “worked very hard to implement the law.”  From the vantage point of this observer, that hard work is evident.

The AMMA was drafted to ensure against foot-dragging by ADHS in its implementation duties, setting strict deadlines for rulemaking and action on applications from Qualified Patients, Designated Caregivers and Dispensaries.  Director Humble met those deadlines, and produced a comprehensive set of rules that appeared to strike a balance appropriate to the spirit of the AMMA.

Humble also was acting on legal advice from Attorney General Horne in shutting down the dispensary application process.  A director of a state agency can’t just ignore the advice he gets from the top lawyer for the state.  One publication even claimed Horne admitted that he “directed” Humble to start denying dispensary applications.
Director Humble strikes me as an honorable and conscientious public servant who faithfully tried to implement the will of the voters.  Until he was ordered to stop.  Whatever your stance on medical marijuana, Director Humble deserves your respect.

Thursday, June 16, 2011

Lawsuits Pepper ADHS Director Will Humble

Back on June 2, I wrote that the lawsuits were “flying” as Governor Jan Brewer filed a federal lawsuit, ADHS Director Will Humble halted the dispensary application process, and dispensary advocates announced their own plans to sue.  That was a bit of an overstatement, as only the Governor’s federal suit had been launched.

It took the dispensary advocates another couple of weeks, but two suits were filed on Tuesday, June 14.  One suit was filed in Maricopa County Superior Court against ADHS and Director Humble.  The other was filed in the Arizona Court of Appeals, also against Director Humble.  Both are “special actions” with special Arizona procedures, not your ordinary civil lawsuits.

Essentially, both suits are asking the courts to order Director Humble and ADHS to do the job voters tasked them with when they passed Proposition 203 – set up an application program and issue licensing certificates to non-profit medical marijuana dispensaries.

What this means for Arizona employers is that their workers may continue to be able to grow their own, or grow marijuana for others, for many months to come.  Until the dispensaries are up and running, any Qualified Patient (QP) who asks will get an ADHS card permitting cultivation of up to 12 marijuana plants, by the QP or his or her Designated Caregiver (DC).

Proposition 203 set out a detailed control system designed both to give QPs ease of access to marijuana for medical use and to restrict access to recreational users.  A limited number of dispensaries was the linchpin of the scheme. 

The current state of affairs – no dispensaries but pot gardens in thousands of Arizona homes – appears to me to be much riskier for employers and all Arizona citizens than the law the voters adopted.

Wednesday, June 15, 2011

Website Connects QPs and DCs

I can imagine employers who want to take an ostrich approach to the Arizona Medical Marijuana Act (AMMA) dismissing yesterday’s post as alarmist fantasy.  “None of my employees is going to become a pot grower,” they assure themselves.

Already up and running, however, is a website matching Qualified Patients (QP) with people who will cultivate their private stock of marijuana.  
When the Arizona Republic reported on Scottsdale philanthropist Gerald Gaines’ efforts to connect QPs with Designated Caregivers (DCs) through his website, CompassionFirstAZ, back in May, it was before the Arizona Department of Health Services (ADHS) decided not to start taking dispensary applications as scheduled on June 1, 2011.

Even then, the reality was that it was going to take approximately a year for dispensaries to be selected and licensed to operate.  Gaines, a founding director of Sprint PCS, was offering free growing lessons to anyone interested in becoming a temporary caregiver until dispensaries open.  He told the Republic then that he was hoping to find 150 people willing to become marijuana-growing DCs.

I’m guessing Gaines is looking for more than 150 now.   It is simply not realistic for Arizona employers to assume that there won’t be green-thumbed do-gooders among their employees.

Tuesday, June 14, 2011

Caregivers Have to be ‘Designated’ by Qualified Patients

Your employees who do not have a debilitating medical condition but want to get involved in the medical marijuana field can do so either by becoming a Designated Caregiver (DC) or a Dispensary Agent, (DA), the two categories other than Qualified Patients (QP) who are protected by the Arizona Medical Marijuana Act (AMMA).  For the moment, the only option available other than QP is DC, as the state and federal governments slog it out in federal court.

But your workers cannot just apply to be a DC, as the word “designated” in the title means that a DC has to be identified by and linked to a QP even to be entitled to apply to the Arizona Department of Health Services (ADHS) for protected Cardholder status.

The rules and procedures adopted by ADHS enforce this linkage requirement, as even to begin to complete the online application, the ADHS requires input of  the QP’s 10-digit ID card number.

This may be one reason the number of ID cards issued by ADHS is now running close to 50 to 1, QP to DC, through June 9, 2011.  Because a QP has to have his or her card in hand to start the DC application process, the DC applications necessarily are lagging the QPs in time.

DCs are permitted to possess 2½ ounces of marijuana and 12 marijuana plants for each QP they are assisting.  DCs are allowed to assist up to five QPs.  A.R.S. § 36-2801(5)(d).

So do the math.  A DC assisting five QPs can possess a sizable quantity of medical marijuana – 12.5 ounces and 60 plants.  According to one online calculator, 12.5 ounces of high quality marijuana in Arizona has a street price of about $4,675.00.

Arizona employers face the very real prospect of having someone with this side activity – growing, harvesting, transporting, perhaps making edible products containing medical marijuana – in their workforce.  Future posts will discuss the policies employers will want to consider to deal with the issues presented by QPs and DCs in a lawful and nondiscriminatory way.

Monday, June 13, 2011

Designated Caregiver – Second Category of Protected Cardholders Potentially Among Your Employees

I have explored how your employees can become Qualified Patients (QPs) licensed by the state to use and possess marijuana for medical purposes.  QPs are only one of three categories potentially among your employees who (someday, when the federal-state dispute is resolved) may be Cardholders protected from workplace discrimination under the Arizona Medical Marijuana Act (AMMA).  Another category, potentially out there now, is the Designated Caregiver (DC).  A.R.S. § 36-2801(5) defines the term.

DCs lawfully can possess medical marijuana and can assist the QPs in the use of medical marijuana, including cultivating it for QPs who are licensed to grow their own.  A DC must be 21 years of age and have no conviction for an excluded felony offense.

Excluded felonies include all classified as violent, meaning any either resulting in death or physical injury, committed with a deadly weapon or dangerous instrument.  Also excluded are all felony drug offenses, except those for which the DC completed serving the sentence more than 10 years ago and those which would have been immunized under the AMMA.

A DC can be reimbursed for the actual costs of the services provided to the QP, but cannot be paid any fee or other compensation.  The DC’s receipt of reimbursement of the actual costs for his services to a QP, however, is immunized from criminal liability.

As of June 9, 2011, only 126 DCs had been licensed as protected Cardholders by the Arizona Department of Health Services.  I predict, however, that these numbers will be growing significantly in the months ahead, for reasons I will explore in future posts.

Friday, June 10, 2011

Qualified Patients Growing Their Own and Trading Among Themselves for Now

With no dispensaries in operation now or likely to be anytime soon, Qualified Patients (QP) have only a couple of legal options for obtaining medical marijuana in Arizona.  They can grow their own, if they sought permission to cultivate as part of their application for a marijuana ID card.

Through June 1, 2011, 3,218 QP applicants have asked for permission to cultivate, or 70.8 percent of all applicants.

A QP licensed to cultivate can possess 2½ ounces of usable marijuana and 12 plants at any given time.  A QP also can legally obtain medical marijuana from another qualifying patient. 

A QP can have a Designated Caregiver who cultivates legal marijuana for him or her.  It is also possible that you have Designated Caregivers among your employees.  We will turn to that category of protected marijuana ID cardholders in an upcoming post.

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.

Wednesday, June 8, 2011

Qualified Patients Get Photo ID Card, Which Employers Can Verify Online

Proponents of the Arizona Medical Marijuana Act (AMMA) touted the fact that the law required the creation of a verification system – a sort of E-Verify for AMMA cardholders.  The verification system is codified at Arizona Revised Statutes § 36-2807, and, as it originally appeared in Proposition 203, only dispensary agents and law enforcement had access to the system.

One of the changes the Arizona Legislature made to the AMMA in the 2011 session was to add employers to the universe of people able to access the online verification system (HB 2541).  Late last month, Arizona Department of Health Services (ADHS) Director Will Humble posted a letter to “All Employers,” advising them of the website where they could register “appropriate users” within the employer’s organization.  ADHS will review the employers’ registration and grant online access for employers to use the verification website,  Law enforcement now uses the site, and dispensaries someday may use it, whenever, if ever, the federal-state litigation is resolved and ADHS resumes taking dispensary applications,

Once registered, employers can input the 20-digit access code on any marijuana ID card presented by an employee to get verification, if it is a valid number, of the name of the cardholder to whom it was issued.  Whenever, if ever, Arizona dispensaries start operating, the system also will report the quantity of medical marijuana dispensed to that cardholder in the last 60 days.

So employers who choose to verify an employee’s marijuana ID card can get access to the verification system to do so.  The larger, more difficult question, however, is should employers seek to obtain this information.  That is a subject for future posts.

Tuesday, June 7, 2011

Many Physicians Eligible to Prescribe Medical Marijuana in Arizona

The Arizona Medical Marijuana Act (AMMA) authorizes medical doctors, osteopaths, naturopaths, and homeopaths who are licensed in the state to provide the medical certification to the Arizona Department of Health Services (ADHS) that equates to a valid medical marijuana prescription.

During the ramp-up to the AMMA’s implementation, one of the most closely watched issues was whether the ADHS regulations would require a long-standing physician-patient relationship before the physician could provide a medical certification as part of the Qualified Patient (QP) application process.  The proposed regulations issued originally by ADHS contained a requirement that the physician-patient relationship either:

(1) had been in existence for at least a year and had included at least four in-person visits during the course of the relationship in which the physician had assessed the debilitating medical condition for which the medical marijuana was being prescribed; or

(2) be one in which the certifying physician has assumed primary responsibility for the management and routine care of the patient’s debililtating medical condition at the time of certification
In essence, the original proposed regulations would not allow a physician to provide a medical certification solely for the purpose of prescribing medical marijuana. 

When the final regulations came out, the requirement that the physician have a yearlong preexisting relationship with the patient or assume primary responsibility for the ongoing treatment of the condition had been eliminated. 

Instead, as the ADHS FAQ on QPs states,

The written certification given to a qualifying patient does not have to come from the physician diagnosing the qualifying patient’s debilitating condition or from the qualifying patient primary care provider.  The written certification can be obtained from a different physician whom the qualifying patient has consulted about the qualifying patient’s medical use of marijuana.”
In other words, a QP can see a physician solely for the purpose of obtaining a prescription for marijuana.  All that is required of the certifying physician is that he or she

  • Make a confirmed diagnosis of a debilitating medical condition.
  • Establish and maintain a medical record for the QP as required by state law.
  • Conduct an in-person medical exam “appropriate” to the debililtating medical condition.
  • Review other medical records from physicians who have treated the QP within the past 12 months, the QP’s responses to conventional medications and medical therapies, and the QP’s profile on the Arizona Board of Pharmacy Controlled Substances Prescription Monitoring Program.
  • Explain the potential risks and benefits of medical marijuana to the QP.
  • Disclose the physician’s relationship with any dispensary to which he refers the QP.
  • Attest that in his or her professional opinion, the QP is likely to receive therapeutic or palliative benefit from medical marijuana to treat or alleviate the QP’s debilitating medical condition.

ADHS Director Will Humble and Chief Medical Officer Laura Nelson, M.D. sent a joint open letter to physicians just after the final regulations were released.  The letter characterizes the Arizona regulatory program as one crafted to “be the first true medical marijuana program in the country” because of the expectations it sets for the clinical assessment required to issue a medical marijuana certification.”  Director Humble and Dr. Nelson say this is their way to try to avoid a program that over time becomes “largely recreational.”

ADHS has warned physicians that it will review the demographics of the QPs.  If ADHS determines that a physician is engaging in unprofessional conduct, it has promised to provide information to the physician’s licensing board.

The warning is not stopping the “pot docs” from advertising their services.  A couple of days ago, my craigslist search for “medical marijuana certification” located 17 offers in the Phoenix area alone.  The weGrow outlet whose grand opening I reported on last week offers medical certification assistance.  Several medical providers have set up dedicated websites.

Thus, despite the sincere efforts of the ADHS regulators, it appears that some Arizona physicians are making a thriving practice out of medical marijuana certifications.  Your employees should not have a difficult time getting a QP ID card if they need one, and maybe if they just want one.  Only time will tell.

Monday, June 6, 2011

How Your Employees Become Qualified Patients Allowed to Use Medical Marijuana in Arizona

Back to the basics after last week’s small news-induced detour.  The category of cardholders protected by the Arizona Medical Marijuana Act (AMMA) that is the largest and most problematic for employers is the Qualified Patient (QP).

Through June 1, 2011, the Arizona Department of Health Services (ADHS) has approved 4,390 applications for ID cards for QPs.  There are only 109 approved Designated Caregivers (DCs) among the state-approved ID cardholders as of the same date.  Link: Application Weekly Report - Arizona Medical Marijuana Program

And there are no Dispensary Agents, and likely won’t be for some time.  That’s because of the hold ADHS has placed on the whole dispensary application process while Arizona sues federal government officials, the news development I wrote about last week.

To apply for a QP ID card, a person over the age of 18 must have a certification from an Arizona physician attesting that the patient has a debilitating medical condition. That term is defined in A.R.S. § 36-2801 as  one of eight specific medical diagnoses or the treatment of one of those eight diagnoses.  The eight diagnoses are: 

  • Cancer
  • Glaucoma
  • Human Immunodeficiency Virus (HIV)
  • Acquired Immune Deficiency Syndrome (AIDS)
  • Hepatitis C
  • Amyotrophic lateral sclerosis (Lou Gehrig’s disease)
  • Crohn’s disease
  • Agitation of Alzheimer’s disease

The AMMA also allows a physician to prescribe medical marijuana to treat five specific symptoms caused by any chronic or debilitating disease or the treatment of any chronic or debilitating disease.  Those symptoms are: 

  • Cachexia or wasting syndrome
  • Severe nausea
  • Seizures, including those characteristic of epilepsy
  • Severe and persistent muscle spasms, including those characteristic of multiple sclerosis
  • Severe and chronic pain

So far, it is the last symptom that is the debilitating medical condition for which the overwhelming majority – 84.8 percent – of the medical marijuana ID cards have been issued thus far.  Severe and chronic pain also is the most subjective and dependent on the self-report of the patient of all of the permissible debilitating medical conditions.  As the Arizona Republic stated in an editorial when the ADHS final regulations were issued, chronic pain is “something that is hard to verify and easy to fake.”

The next most prevalent conditions among Arizona QPs approved for ID cards thus far also are symptoms, muscle spasms, at 15.6 percent, followed by nausea, at 13.9 percent.  The most prevalent disease is Hepatitis C, reported by 7.3 percent of QPs who have been approved for ID cards through June 11, followed by cancer, at 5.6 percent.

The physician certifying the debilitating medical condition must do so on the ADHS-approved form.  The patient must submit an application online through the ADHS website and pay a $150 fee (which can be reduced to $75 for applicants currently on food stamps).

So far, the success rate for QP applicants is very high, with only one person being denied an ID card after submitting a complete application.  The QP cardholders as of June 1, 2011 are predominantly older Arizonans, with 41.6 % over the age of 51.  Across the rest of your potential workforce, however, cardholders are evenly distributed, with about 19 percent of them falling into each of the age ranges 18-30, 31-40, and 41-50.

Friday, June 3, 2011

Arizona Employees Getting New Resources to Help Them Grow Their Own

CNN - 'Walmart of Weed' to Open in Arizona, Promotes Growing Your Own

This CNN report from earlier this week helps to reinforce my warning from yesterday -- that the Arizona Medical Marijuana Act (AMMA) -- is not on hold for Arizona employers.  The report features a new establishment in Phoenix, weGrow, which held its grand opening on June 1, 2011, to coincide with the day the state was scheduled to begin taking dispensary applications.  The big-box retailer offers everything a would-be cultivator of medical marijuana would need to grow his or her own supply of cannabis.  Following the model of other big-box stores, weGrow is even going to offer how-to classes for hydroponic marijuana growing, and sell all the supplies a neophyte grower would need.

State officials' decision last week to sue federal officials rather than begin taking dispensary applications is going to be a boon for weGrow's business.  While only about 4,000 medical marijuana ID cards have been issued since Arizona started issuing them on April 15, 2011, weGrow's business plan anticipates 100,000 Qualified Patient cardholders, a nice, fat potential customer base.

It is likely that some of your employees will be among weGrow's customers.

Thursday, June 2, 2011

No Matter the Headlines, Legal Marijuana Can Still be in Arizona Workplaces

Despite my intention to proceed logically and deliberately through the three possible categories of marijuana cardholders protected by the Arizona Medical Marijuana Act (AMMA), the bold headlines just won’t let me.

As you probably have heard, the lawsuits are flying as Governor Jan Brewer and other state officials have sued federal government officials in the latest installment of the long-running series of federal-state conflicts over medical marijuana. That lawsuit is spawning others, because Arizona Department of Health Services (ADHS) Director Will Humble, another plaintiff in the state-federal lawsuit, has decided not to accept applications from folks wanting to open marijuana dispensaries.

Yesterday was the day ADHS was scheduled to begin accepting those applications under the timeline Director Humble and his staff issued at the same time they finalized the regulations to implement AMMA.  To lay a foundation for another lawsuit, a prospective dispensary applicant showed up at Humble’s office yesterday to try to submit an application, and he was turned away.  The would-be applicant is now going to sue the state officials for failing to implement the will of the people expressed in Proposition 203, the vehicle by which AMMA became law.

To Arizona employers, I say, none of the legal wrangling matters much for you and the challenges AMMA presents for your workplace.  Director Humble intends to continue issuing marijuana ID cards to Qualifying Patients and their Designated Caregivers.  So regardless of the headlines, the AMMA is not on hold for you.

Wednesday, June 1, 2011

Starting With the Basics of the Arizona Medical Marijuana Act (AMMA)

There is so much ground to cover, so many significant developments to address, so much real hard news!  The newswoman in me wants to go straight to the news.  I might leave you behind, though, if you have not been following the AMMA since Election Night or sooner.  A fundamental reason I started Arizoneout is because I don’t think many employers even have the AMMA on their radar as something to care about.

So the only place I know to start is at the beginning, so here goes.

Proposition 203, adopted by Arizona voters in November 2011, contained 27 separate legal provisions, all of which are codified in Title 36, Chapter 28.1 of Arizona Revised Statutes.  Some of those 27 statutes have 5 or 10 subsections, and their subsections sometimes have sub-subsections.  It is not an easy read.

While only a few provisions of the AMMA are directly applicable to employers, a general familiarity with the structure and functioning of the law as a whole is important to a proper understanding of the workplace regulation it creates.

The legalizing essence of the AMMA can be found in ARS § 36-2811(B), which provides that a person who otherwise complies with the AMMA “is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege, including any civil penalty or disciplinary action by a court or occupational or professional licensing board or bureau” for the possession or use of marijuana.  The law carves out an exception to the otherwise criminal conduct that the possession or use of marijuana is in the State of Arizona.

To fall within this carve out, the marijuana user must be a “qualifying patient” and must apply for and receive a registry identification card from the Arizona Department of Health Services (ADHS).  For now, the only other people who legally can possess marijuana are “designated caregivers,” who assist the qualifying patients in their medical use of marijuana.  Someday – maybe, if the federal-state conflict that I’ll address in future posts gets resolved – there may be another category of lawful possessors of marijuana.  Those will be “dispensary agents.”

These will be the categories of people among your employees who are protected against discrimination by the AMMA.