December 2010

Arizona Voters Approve Medical Marijuana Law

Originally posted in the Arizona Employment Law Letter, December 2010
By Dinita James

While the early election returns showed the "no" votes holding the lead, proponents of the Arizona Medical Marijuana Act pulled out a narrow victory once county election officials counted all the early and provisional ballots. Arizona employers need to start preparing now for antidiscrimination and drug-testing provisions that are included in the new law.


When all the votes were counted, the Arizona Medical Marijuana Act passed by a slim margin. Arizona is the 15th state to permit the use of marijuana for medical purposes.

By springtime next year, employers in the state will have to deal with a new protected status in the workplace ? the medical marijuana ID cardholder. Protected cardholders include not just marijuana-using patients, but also their registered caregivers and registered dispensary agents.

Proposition 203, also known as the medical marijuana measure, was the only proposition that made it on the ballot in Arizona this year through the citizen initiative process. Election night returns showed the measure trailing by more than 6,000 votes, and that margin held for more than a week of postelection vote counting.
The "yes" votes started cutting into the margin when election officials began counting verified provisional ballots.

In the final (but still unofficial) tally, the "yes" votes enjoyed a 4,341-vote margin out of nearly 1.7 million votes cast. Voters in only three of Arizona's 15 counties ? Coconino, home to Flagstaff, Pima, home to Tucson, and Santa Cruz, on the Mexican border south of Tucson ? supported the measure. Voters in Maricopa, the state's most populous county, voted against Proposition 203 by a 4,026-vote margin.
The results became official November 29 ? the effective date of the Act and the date from which the countdown to implementation began.

What the Law Means

The Arizona Medical Marijuana Act will allow qualified individuals and their registered caregivers to possess, use, transport, and, in certain circumstances, cultivate marijuana for medical use. Qualification includes certification by a physician that the medical use of marijuana is likely to provide a therapeutic or palliative benefit to a patient suffering from a debilitating medical condition (e.g., cancer, AIDS, hepatitis C, Crohn's disease, Alzheimer's, or epilepsy), including ailments causing severe and chronic pain, severe nausea, wasting syndrome, or muscle spasms.

The law puts the Arizona Department of Health Services (ADHS) in charge of establishing and administering a Web-based verification system, creating a permitting process for up to 124 nonprofit dispensaries, and issuing photo ID cards for qualified patients, their designated caregivers, and authorized agents of dispensaries. The department must implement regulations within 120 days or all complete applications for qualified patient status will be deemed valid.

ADHS Director Will Humble expects to meet the deadline and has announced a timeline for accomplishing the rulemaking. The department expects to publish an informal draft of the rules by December 17, followed by a formal draft by January 31, 2011. After a public comment period and three public meetings, the ADHS plans to issue the final rules by March 28, 2011.

What to Expect

The Act will likely have a significant effect on Arizona employers. Qualified patients, caregivers, and dispensary agents will become a protected category under an express prohibition of discrimination against them based on their status as medical marijuana ID cardholders. Under the new law, employers are prohibited from refusing to hire, firing, or otherwise taking an adverse employment action against an ID cardholder unless a failure to do so would cause the employer to lose a monetary- or licensing-related benefit under federal law or regulations.

Additionally, drug-testing policies will need to be revised. That's because the discrimination prohibition extends to qualified patients who test positive for metabolites or components. There's an exception if the employer can prove the employee possessed, used, or was impaired by marijuana on the premises or during work hours.

By April 2011, the ADHS will begin accepting applications for marijuana registry ID cards. The law requires the ADHS to act on the applications within 10 days and to issue photo ID cards within five days after approving an application. That means Arizona employers will need to have their revised policies in place by mid-April 2011.

Arizona voters have considered three previous marijuana-related ballot issues. The only ballot proposal to succeed was in 1996 when voters approved use of marijuana for medical purposes. State lawmakers quickly gutted the law after federal authorities threatened to revoke the licenses of doctors who prescribed marijuana.

In 1998, Arizona voters rejected a ballot measure sponsored by marijuana opponents that would have required Congress or the federal government to authorize the use of medical marijuana before Arizona doctors could prescribe it.

In 2002, Arizona voters rejected an effort to legalize possession of small amounts of marijuana and make it available (at no cost) to patients who have cancer or other diseases.

The key sponsor of the Arizona proposition was the Marijuana Policy Project, a Washington, D.C.-based lobbying group.

Bottom Line

By spring 2011, Arizona employers should consult legal counsel for a review of their equal employment opportunity policies and any drug- testing policies to make sure they are compliant with the new law before it is fully implemented.