March 2011

Countdown to Date When Workers Can Get High Legally is Still Uncertain

Originally posted in the Arizona Employment Law Letter, March 2011
By Dinita James

The Arizona voters' adoption of Proposition 203 in November 2010 did not make the medicinal use of marijuana instantly legal. Instead, it launched a regulatory process under the Arizona Department of Health Services (DHS) that leaves uncertain exactly when employers in Arizona will need to be prepared for workers who can legally use or possess marijuana.

The DHS rulemaking process will conclude by early April. The DHS will then start taking applications for ID cards from qualified patients and caregivers. Department rules require that the ID card be issued within 15 days of receipt of a valid application, so it's likely there will be Arizona workers in possession of a medical marijuana ID card before the end of April.

The new law protects medical marijuana users from employment discrimination based on their status as a legal user, so you need to be sure your policies are in order before the DHS starts issuing ID cards.

Valid ID Cards Do Not Come with Supply of Weed

Once in possession of a valid marijuana ID card, a qualifying patient initially will have only one way to legally obtain marijuana ? by growing it. Every qualifying patient who gets an ID card in the first several months of the implementation of the new rules will be able to cultivate marijuana in an enclosed area.

Eventually, patients who live within 25 miles of a dispensary will not be able to grow their own marijuana; they will have to purchase it from a dispensary. DHS regulations also lay out the procedures for applying for a dispensary license and operating a dispensary. Arizona cities, towns, and counties are busy implementing appropriate zoning regulations on the location of dispensaries and their cultivation and food-preparation facilities. Once licensed, the dispensaries will be able to sell plants, plant products, and edible food products containing marijuana.

The initial licensing process is scheduled to take more than four more months, meaning the first dispensaries could begin operation as early as late September or early October. That four-month window happens to be the approximate length of time required for marijuana to grow from a seed to a mature plant with buds containing THC, which contains the plant's medicinal properties. So it will likely be fall before Arizona employers will have to face the ramifications of medical marijuana in the workplace.

'Soft' Opening Date Means Ample Time to Get Ready

Human nature teaches that employees are going to push the envelope. For example, the laws of neighboring states that permit medical marijuana, such as California and Colorado, may permit sales of marijuana plants and products to Arizona residents who have a valid Arizona ID card. Here is a short list of some things you should be doing now to prepare for workers who will be using medical marijuana sometime this year:

Determine whether your company falls under a federal exemption for some or all of its employees. Because marijuana is still an unlawful drug under federal law, the Arizona statute prohibiting discrimination in employment allows an out for an employer that would lose a monetary or licensing-related benefit under federal law or regulations if it did not discriminate against an employee who uses medical marijuana. That means that every employer will need to review any federal licenses it holds, federal contracts it works or subcontracts under, and the regulations of any federal benefit program in which it participates to determine whether it has a federal exemption. If you qualify for an exemption, you shouldn't assume that it applies to the entire workplace. The exemption comes only in the antidiscrimination provision, so the analysis of the exemption will have to be conducted on an employee or a position basis.

Review and update relevant policies. The Arizona Medical Marijuana Act can implicate many types of employment policies. If you have a zero-tolerance drug policy or engage in drug testing, you will need to review those policies. Most equal employment policies include a broad statement of all the bases on which employers do not discriminate. Those policies may need to be revised to include the protected status of marijuana ID cardholders in Arizona.

Make sure you have all the policies you need. The new law allows those in "lawful possession of property" to restrict the use of marijuana on that property. So if you intend to restrict the use of marijuana on company property, you need a policy stating that. The law also allows you to prohibit employees from working under the influence of marijuana, so you may want to implement a policy prohibiting working while impaired if you don't already have one.

Refrain from asking employees if they are marijuana ID cardholders. A qualifying patient has to provide certification of a debilitating medical condition to obtain an ID card. Thus, knowing that an employee is a qualifying patient likely renders him protected at least by the Family and Medical Leave Act as having a serious medical condition. That same employee is also probably disabled under the Americans with Disabilities Act.

Clearly, the information should be considered protected under the Health Insurance Portability and Accountability Act. As is always the case, if you don't know about an employee's protected status, you can't discriminate against him based on that status. Nevertheless, you're probably going to find out at some point. Thus, it's important to have policies in place to protect confidential medical information.

Bottom Line

Much is uncertain about how the new law will change Arizona workplaces, but change they will. Countless HR, legal, and practical issues are going to present themselves. A big one is how to determine impairment, as there is no clear standard for marijuana impairment. We will be addressing these issues in the months ahead, so stay tuned.