Friday, August 5, 2011

Ads for Pot Docs Proliferate

I am a fan of Phoenix New Times.  The alternative weekly has some hard-hitting reporting and covers stories that the mainstream local media sometimes ignores or gives superficial coverage.  So it is no criticism of the editorial content of that publication when I say I turned to its ad pages to see how Arizona physicians were handling their responsibilities under the Arizona Medical Marijuana Act (AMMA).

A couple of recent issues had two full pages of ads for medical marijuana related products and services.  Most of those ads promoted medical marijuana evaluations.   The going rate seems to be about $100 for certifications.

The ads feature clever phrases such as "Get Legal Now," and "Chronic pain qualifies you!"
Other ads feature smiling, attractive and predominantly female health care providers in white lab coats with stethoscopes draped around their necks.  The ads assure that services are "100% Privacy Guaranteed!!!"   There's even one ad offering a "compassionate special" -- refer five people and the renewal is 50% off.

Arizona employers need to know that it does not appear difficult for workers who want a medical marijuana ID card to find a doctor who will certify their need for one.

Thursday, August 4, 2011

Arizona Board Of Medicine May Lack Experts Qualified to Judge Pot Docs

In a June 7, 2011 post, I reported on Arizona Department of Health Services (ADHS) Director Will Humble's promise to report what ADHS judged to be unprofessional conduct by certifying physicians to the physician's appropriate licensing board.

As of now, that may be a futile gesture.  In a recent report by the Arizona Office of the Auditor General, one of those licensing boards, the Arizona Board of Medicine, reported that it expected to get an increase in complaints because of ADHS referrals of doctors who are not following ADHS rules.

The Board of Medicine expects to have "challenges" in handling these complaints.  That's because the way the Board of Medicine reviews complaints is by having staff doctors and hired consultants to review the case and determine whether the doctor's conduct met the professional standard of care. 

The staff doctors and consultants have to be qualified in the type of care at issue to judge the work of the doctor being investigated.  Because medical marijuana is an "emerging" practice area, the Board of Medicine is concerned that it may have a shortage of qualified consultants available to conduct the professional conduct investigations of pot docs.

That conclusion surfaced in the auditor's report, of which the overall finding was that the Arizona Board of Medicine needed to "improve staff doctor and medical consultant selection, medical consultant training, and problem resolution practices."

That doesn't give Arizona employers a lot of confidence that the Board of Medicine is going to be effective at keeping the word "medical" the prominent focus under the AMMA.

Wednesday, August 3, 2011

Federal Drug Testing Regs Only A Limited Shield To Transportation Employers From AMMA's Discrimination Ban

In a July 25, 2011 post, I began what I expect to be an ongoing examination of the parameters of the exemption to the Arizona Medical Marijuana Act (AMMA) for employers who would lose a monetary or licensing related benefit under federal law or regulations for failing to discriminate based on marijuana use.  That post concluded that the federal Drug Free Workplace Act applicable to most federal contractors and grantees actually did not conflict with the AMMA or give any employer the right to invoke the AMMA exemption if facing discrimination claims by registered Cardholders.

By far the biggest group of employers who may be able to claim the exemption are those in the trucking, railroad, airline and transit system industries, who are subject to federal drug testing regulations.  Those employers are required to test upon certain occasions that vary with each industry.  The regulations are very specific and flunk those employees who have a threshold concentration of marijuana metabolites in their urine that is no indication of marijuana impairment or recent use.

This is one clear case in which federal regulations require Arizona employers to discriminate against Qualified Patients (QPs) who otherwise would be protected by the AMMA.  The AMMA specifically protects QPs who test positive for marijuana metabolites from discrimination unless the federal exemption applies.  So employers in the regulated transportation industries can take action against a protected AMMA Cardholder on the basis of a positive drug test.

But the only action mandated by the DOT regulations is that the employer remove the employee failing the drug test from safety sensitive positions.  The regulations also state that the employer cannot return the employee to the safety sensitive position until the employee complies with a comprehensive treatment and education program and passes another drug test.

Arizona employers who have to comply with DOT drug testing requirements do not have to fire or otherwise discipline employees who fail drug test.  So the AMMA exemption does not protect the employer who fires or otherwise disciplines a QP for failing a drug test, even if the employer is subject to federal drug testing requirements.

The only real clarity for Arizona employers on the scope of the AMMA exemption is that a QP's prescription for medical marijuana does not authorize a medical review officer to give the QP a pass on the DOT drug test.  That is clear from the face of the regulations.  The DOT Office of Drug and Alcohol Policy issued a statement to reinforce that point back in October 2009, stating, "It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation's drug testing regulations to use marijuana."

So Arizona employers subject to the DOT regulations fall squarely within the AMMA exemption when they penalize an employee who is a QP by taking him or her out of a safety sensitive position.  Any other disciplinary action against that QP would not be protected and would subject an Arizona employee to potential legal liability.

Tuesday, August 2, 2011

Delaware Legislature Adopts Law Similar To AMMA

On May 11, 2011, Delaware became the 17th U.S. jurisdiction (16 states plus D.C.) to legalize the medical use of marijuana.  Delaware's law came through the legislative process, adopted by both houses of its state legislature and signed by the governor, while the Arizona Medical Marijuana Act (AMMA) came through voter initiative.

The Delaware law is very similar to the AMMA, however, because it is mostly the model act promulgated by the D.C.-based Medical Marijuana Project, a national advocacy group favoring medical marijuana.  It contains protections against employment discrimination identical to those in the AMMA.

Delaware employers have a year to get ready for legal marijuana in their workplaces, as the state won't begin issuing ID cards to Qualified Patients and Designated Caregivers until then.

I have started a blog roll for Arizoneout with the Delaware Employment Law Blog.  This pioneer in the world of state-specific legal blogs is edited by Molly DiBianca at fellow Employer Counsels Network member firm Young Conaway Stargatt & Taylor, LLP in Wilmington, DE.

The Delaware Employment Law Blog already has one post alerting that state's employers to what they are facing in the year ahead.  I'll be interested in what else they have to say as Delaware employers adapt to what we already are experiencing here in Arizona.

Monday, August 1, 2011

New York Times Endorses State Trend Toward Legal Medical Pot

On July 26, 2011, the Gray Lady herself, the New York Times, urged New York Governor Andrew Cuomo to champion a sensible and humane system for the medical use of marijuana by New York citizens.  This is a sharply different direction from that of the Obama Administration, as we reported in a July 21, 2011 post.

The editorial in what many regard as America's "newspaper of record" was prompted by the announcement from the Republican Governor of New Jersey and conservative darling, Chris Christie, that he was allowing that state's medical marijuana program to proceed.

New Jersey was the 14th state to legalize medical marijuana, by legislative action signed into law by former Democratic Governor John Corzine on his last day in office.  Governor Christie's position during the campaign was that he would not have signed the law into effect.

New Jersey's law is one of the nation's strictest, in part because of the narrow scope of qualifying medical conditions and in part because of the regulations issued after Governor Christie took over.  New Jersey also does not have the employment protections that the Arizona Medical Marijuana Act contains.

The state was moving forward with a system in which marijuana would be available to people licensed to use it only at six treatment centers throughout the state when the flurry of letters from federal prosecutors hit.  It was that flurry of letters that sent Arizona and our Governor Jan Brewer to federal court that caused Governor Christie to put New Jersey's program on hold and seek specific written guidance from the U.S. Department of Justice earlier this year.

Governor Christie never got his federal guidance.  Nevertheless, he decided to move forward based on his own informed judgment from seven years as a federal prosecutor.  He said:  "I don’t believe the United States Attorney’s Office in New Jersey, given the narrow and medically based nature of our program will expend what are significantly lessening federal law enforcement resources in the context of the federal budget, on going after dispensaries in New Jersey, our Department of Health or other state workers who are helping to implement this program."

The New York Times wants Democratic Governor Cuomo to follow Governor Christie's lead.  Governor Cuomo is on record against medical marijuana but is now reviewing the issue.  He should change his mind, according to the Gray Lady, because "there is no good reason to deprive patients with cancer or H.I.V. or Lou Gehrig's disease of the relief from pain or extreme nausea that could come from using marijuana."

Monday, July 25, 2011

AMMA Exemption Does Not Reach All Employees of Federal Contractors, Grantees

I have heard reports of employers announcing to all their workers that anyone who gets a card allowing possession of cannabis under the Arizona Medical Marijuana Act (AMMA) will be fired.  There are only a handful of employers who lawfully can take this strong stand.

One of the key issues employers need to address under the Arizona Medical Marijuana Act (AMMA) is whether they fit within the exemption to the antidiscrimination provision.  The statutory language is such that all employers are barred from taking adverse action against a person protected by the AMMA “unless the failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations.’  A.R.S. § 36-2813(B).  So the starting point of the analysis must be the recognition that most employers are subject to the AMMA’s ban on penalizing Cardholders licensed to possesses and, in some cases, use medical marijuana. 

An employer falls within the exemption only when federal law requires the employer to take an action as to each person protected by the AMMA.  The employer likely will have the burden in court of showing the exemption applies to the particular employee complaining of unlawful treatment.

So if there was some federal requirement under a grant or contract that some of your employees be able to pass a urine drug screen for the metabolites of marijuana, then you would be exempt from the AMMA's prohibition against, for example, penalizing a Qualified Patient (QP) for failing a drug test for marijuana metabolites only, so long as that QP is one for whom federal law required marijuana metabolite-free urine drug screens.

We already have seen that one major source of federal requirements relating to drugs does not require workplace drug testing or prohibit the employees of its contractors or grantees from using state-permitted medical marijuana outside of the workplace.  As discussed in the July 18, 2011 post , the federal Drug Free Workplace Act only prohibits the  possession or use of marijuana in the workplace.  The Act does not even require employers who are federal contractors or grantees to implement a drug testing program, and the federal Office of Management and Budget regards drug testing as only one possible component of a program of compliance.

So Arizona employers who hold federal contracts or grants should not assume merely by that status that they can take adverse actions against AMMA Cardholders.  The status of federal contractor or grantee alone does not bring the employer under the exemption.  To trigger the AMMA exemption, the employer must have additional federal obligations other than those  generally applicable to federal grantees and contractors under the Drug Free Workplace Act.

Thursday, July 21, 2011

Recent Action by Obama Administration Bodes Ill for Medical Marijuana

In a July 14 post [link], I pointed out an opinion piece on CNN.com in which a presidential candidate was advocating legalization of marijuana.  According to a recent National Public Radio report, however, President Obama and his administration are strengthening the federal stance against marijuana, medical or otherwise.

 
The NPR report identifies three distinct ways the Obama administration has lashed out against marijuana in recent weeks:
  • The White House on July 11 released its National Drug Control Strategy, which argued that marijuana is unsafe and addictive, while its use is at the highest level in the last eight years.
  • The Drug Enforcement Administration in early July concluded a lengthy consideration of whether to reclassify marijuana, and decided against it.  Thus, marijuana remains classified as a Schedule I, the category reserved for drugs with no currently accepted medical use.
  • The third strike against marijuana that the NPR report attributes to the Obama administration is familiar to Arizonans.  The report summarizes the statements by federal prosecutors that large-scale marijuana dispensaries are not immune from federal prosecution.

As Arizoneout readers know, the strong statements by federal prosecutors are what prompted state officials to halt the marijuana dispensary licensing program and file suit in federal court.

Monday, July 18, 2011

Employers Subject to Federal Drug-Free Workplace Act Already Must Ban Pot on Premises

In a July 5, 2011 post I made the case against adopting an express policy barring medical marijuana on the premises.  A subset of Arizona employers already should have policy in place that bans marijuana in the workplace  − those subject to the federal Drug Free Workplace Act.

In general, the Act applies to any person or entity awarded a federal grant or a federal contract worth more than $100,000 to purchase goods or services that are not commercially available.  The U.S. Department of Labor has a website that helps you determine if you are subject to the requirements of the Act.

Arizona employers subject to the Act must publish a policy statement notifying employees that the "unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the . . . workplace and specifying the actions that will be taken against employees for violations of the prohibition."  The words in bold are the keys for understanding how the federal Act intersects with the Arizona Medical Marijuana Act (AMMA).

The term "controlled substance" is linked to the federal Controlled Substances Act, specifically those drugs in Schedules I through VII.  Marijuana is classified as a Schedule I drug under federal law, meaning it is has no currently accepted medical use in treatment in the United States.  There is no lawful use of drugs on Schedule I under federal law.  Thus, Arizona employers subject to the Drug Free Workplace Act must have a policy that prohibits possession of marijuana on the workplace premises. 

One of the reasons that I generally advise against a complete  "No Pot on the Premises" policy for Arizona employers is that it could be considered discriminatory under the AMMA to allow employees to bring strong prescription or even over-the-counter medications into the workplace while banning medical marijuana.

The AMMA's language protects employers subject to the Drug Free Workplace Act from liability for such discrimination by express terms.  This is one place that the introductory language of the AMMA's antidiscrimination provision  − words that we will dissect in greater detail in future posts − clearly applies.  That language specifically allows discrimination against AMMA Cardholders, because "failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulation."  A.R.S. § 36-2813(B).

Employers subject to the Drug Free Workplace Act who fail to comply can have their contracts or grants terminated and be barred from receiving future ones.  Thus, to the extent that the AMMA otherwise may be interpreted to require employers to allow Cardholders to bring pot onto the premises, employers who are federal grant recipients or covered federal contractors are exempt from that requirement.  Their No Pot on the Premises policies can remain in effect notwithstanding the AMMA.

Thursday, July 14, 2011

Presidential Politics and Pot Policy

I came across an interesting opinion piece that appeared on CNN.com last week by Gary Johnson, former governor of our neighboring state, New Mexico, and a candidate (albeit a long-shot one) for the 2012 Republican presidential nomination.

Johnson, also known as "Governor Veto," has been advocating legalization of marijuana since 1999.  He came to that stance not because of asserted medical benefits of the substance, but because he concluded that the War on Drugs began by President Richard Nixon 40 years ago actually has not reduced drug use but instead has created a lucrative black market that empowered violent gangs and cartels.  In Governor Johnson's words, "it was like alcohol prohibition all over again, with similarly disastrous results."

When a candidate for president is advocating the legalization of marijuana, it makes the Arizona Medical Marijuana Act appear to be a fairly modest measure by comparison.