A birthday present from Arizona Department of Health Services (ADHS) Director Will Humble awoke Arizoneout from its long winter's nap with a newfound commitment to keep those posts coming on a more regular basis. Humble's blog post on April 11, 2012 − yes, that is the anniversary of Dinita James' birth − said his agency was dropping the flag on the race to apply for a dispensary license.
The demands of my law practice and other professional commitments seemed to call me away from blogging about the Arizona Medical Marijuana Act (AMMA) and its impact on workplaces in the state during the first quarter of 2012. On starting my own personal new year, I had resolved to get back on the blog, with a goal of one or two posts a week.
So the email announcing Humble's blog post seemed to hit my inbox with karmic significance. Full implementation of the AMMA may be in sight, barring another litigation explosion or a raid by the feds. More Arizonans are bound to seek ID cards as Qualified Patients (QP) authorized to use medical cannabis if there are stores where they can go buy the stuff, or brownies and milkshakes containing it.
More QPs mean more issues about marijuana for Arizona employers to face. More need for Arizoneout, then, too.
ADHS will start accepting dispensary applications on May 14, and the window to apply is only 11 days.
ADHS will review the applications as they come in, and will issue registration certificates on August 7. There's another certification and inspection required before dispensaries can open, but it appears likely that some dispensaries will be up and running long before the end of 2012.
One post Arizoneout did make during 1Q 2012 was to announce the clearing of the litigation logjam that had interrupted implementation of the AMMA. The event that Humble called the flag drop was the filing of revised regulations with the Secretary of State. Faced with a court order to strike several selection criteria ADHS had been planning to use in awarding dispensary licenses and to move forward to implement the law, Humble said that's "what we're doing."
If there are competing applicants for a dispensary license in a given territory, ADHS will determine the winner by random draw. Megabonus for the winners!
Monday, April 16, 2012
Thursday, March 1, 2012
“Current Use” Is Trigger For Excluding QPs From Safety-Sensitive Positions
The Arizona Medical Marijuana Act (AMMA) allows employers to prohibit Qualified Patients (QP) in their work force from being impaired by medical pot during work hours or on the premises. The 2011 amendments to the Drug Testing of Employees Act is designed to let employers be more aggressive in excluding QPs from performing safety-sensitive positions if they are engaged in the “current use” of medical cannabis.
The way the Arizona Legislature has done this is by expanding the immunity from litigation offered to employers who comply with the Drug Testing of Employees Act, as we explained in a February 13, 2012 post . The immunity extends to employers who exclude a worker from safety-sensitive positions based on a good-faith belief that the worker is engaged in the “current use of any drug.”
So what does “current use” of medical marijuana mean? The Drug Testing of Employees Act defines it as “drug use that has occurred recently enough to justify an employer’s reasonable belief that involvement with drugs is ongoing.” A.R.S. § 23-493(2). The statute goes on to state, “Current use of any drug is not limited to any specific time frame and depends on the facts of each individual case.”
The transparent intention of the legislature is to allow employers to equate a positive drug test for marijuana metabolites with “current use.” Remember that the AMMA itself prohibits employment discrimination against a QP based solely on a positive drug test for marijuana components or metabolites, without proof that the QP used marijuana on the premises or during work hours. A.R.S. § 36-2813(B)(2).
Employers who want to exclude QPs from safety-sensitive positions would be well-advised to craft their drug testing policies so that a positive drug test for marijuana constitutes conclusive evidence of “current use.”
The way the Arizona Legislature has done this is by expanding the immunity from litigation offered to employers who comply with the Drug Testing of Employees Act, as we explained in a February 13, 2012 post . The immunity extends to employers who exclude a worker from safety-sensitive positions based on a good-faith belief that the worker is engaged in the “current use of any drug.”
So what does “current use” of medical marijuana mean? The Drug Testing of Employees Act defines it as “drug use that has occurred recently enough to justify an employer’s reasonable belief that involvement with drugs is ongoing.” A.R.S. § 23-493(2). The statute goes on to state, “Current use of any drug is not limited to any specific time frame and depends on the facts of each individual case.”
The transparent intention of the legislature is to allow employers to equate a positive drug test for marijuana metabolites with “current use.” Remember that the AMMA itself prohibits employment discrimination against a QP based solely on a positive drug test for marijuana components or metabolites, without proof that the QP used marijuana on the premises or during work hours. A.R.S. § 36-2813(B)(2).
Employers who want to exclude QPs from safety-sensitive positions would be well-advised to craft their drug testing policies so that a positive drug test for marijuana constitutes conclusive evidence of “current use.”
Monday, February 13, 2012
Expansion Of Employer Immunity For Actions To Keep Medical Cannabis Users Out Of Safety-Sensitive Positions
In a post late last year, Arizoneout explained how broadly the state legislature reached in giving employers discretion to attach the safety-sensitive label to certain job positions. Despite the broad protections against workplace discrimination that the Arizona Medical Marijuana Act (AMMA) provides to Qualified Patients (QPs), the legislature wants employers to be able to keep QPs out of safety-sensitive positions when they reasonably believe the QPʼs use of medical cannabis might subject the employer to liability.
Hereʼs how the legislature has tried to give employers this ability to do what the AMMA seems to prevent employers from doing, and why it had to be done under the Drug Testing of Employees Act. The 2010 amendments to the Act expanded the liability shield already contained within it to actions employers take to get workers using not just medical cannabis but other impairing drugs out of safety-sensitive positions.
The original language of the liability shield was titled, "Employer protection from litigation," and read as follows: "No cause of action is or may be established for any person against an employer who has established a policy and initiated a testing program in accordance with this article for any of the following."
The list of immunized conduct included the expected − actions taken in good faith based on positive test results, failure to test, to test for a specific substance, or to detect a substance or condition, and termination of any program or policy on testing or substance abuse prevention.
The amendments in 2011 that were targeted at the AMMA added three new categories of employer conduct that the legislature wanted to immunize. Two were the very policies that the AMMA itself allowed employers to have: prohibitions on use or being impaired on the employerʼs premises or during work hours. The immunity shield offered for these actions is available only if the employer acted with a good-faith belief that one of those AMMA-sanctioned prohibitions had been violated. (One of these categories also allows prohibition on possession of drugs on the employerʼs premises or during work hours, but see the June 24, 27, 30, and July 5, 6, and 18, 2011 posts for much more on that issue.)
The third new category immunizes "[a]ctions to exclude an employee from performing a safety-sensitive position, including reassigning the employee to another position or placing an employee on paid or unpaid leave, based on the employerʼs good-faith belief that the employee is engaged in the current use of any drug, whether legal, prescribed by a physician or otherwise, if the drug could cause an impairment or otherwise decrease or lessen the employeeʼs job performance or ability to perform the employeeʼs job duties."
Let that language sink in for a bit. There is a lot packed in there, and the legislature defined some of those key terms, like "current use of any drug," "good faith," and "impairment." Weʼll explore those statutory definitions and consider how they should guide the shaping of your policies in future posts.
Hereʼs how the legislature has tried to give employers this ability to do what the AMMA seems to prevent employers from doing, and why it had to be done under the Drug Testing of Employees Act. The 2010 amendments to the Act expanded the liability shield already contained within it to actions employers take to get workers using not just medical cannabis but other impairing drugs out of safety-sensitive positions.
The original language of the liability shield was titled, "Employer protection from litigation," and read as follows: "No cause of action is or may be established for any person against an employer who has established a policy and initiated a testing program in accordance with this article for any of the following."
The list of immunized conduct included the expected − actions taken in good faith based on positive test results, failure to test, to test for a specific substance, or to detect a substance or condition, and termination of any program or policy on testing or substance abuse prevention.
The amendments in 2011 that were targeted at the AMMA added three new categories of employer conduct that the legislature wanted to immunize. Two were the very policies that the AMMA itself allowed employers to have: prohibitions on use or being impaired on the employerʼs premises or during work hours. The immunity shield offered for these actions is available only if the employer acted with a good-faith belief that one of those AMMA-sanctioned prohibitions had been violated. (One of these categories also allows prohibition on possession of drugs on the employerʼs premises or during work hours, but see the June 24, 27, 30, and July 5, 6, and 18, 2011 posts for much more on that issue.)
The third new category immunizes "[a]ctions to exclude an employee from performing a safety-sensitive position, including reassigning the employee to another position or placing an employee on paid or unpaid leave, based on the employerʼs good-faith belief that the employee is engaged in the current use of any drug, whether legal, prescribed by a physician or otherwise, if the drug could cause an impairment or otherwise decrease or lessen the employeeʼs job performance or ability to perform the employeeʼs job duties."
Let that language sink in for a bit. There is a lot packed in there, and the legislature defined some of those key terms, like "current use of any drug," "good faith," and "impairment." Weʼll explore those statutory definitions and consider how they should guide the shaping of your policies in future posts.
Thursday, February 2, 2012
ADHS Avoids Groundhog Day By Signaling Dispensaries By Summer
Happy Groundhog Day! The 1993 movie bearing that name is a favorite. Arizoneout has something of that same, deja vu feeling that Bill Murray had, because the last post was an admission of error on a prediction, and this post starts with the same confession.
When Arizona Department of Health Services (ADHS) Director Will Humble said the dispensary application process might be further delayed by a pending lawsuit challenging his agencyʼs regulations implementing the Arizona Medical Marijuana Act (AMMA), even after the State's federal lawsuit was dismissed, Arizoneout predicted the dispensaries' legal limbo would extend for many months.
Wrong, wrong.
Under the headline "Dispensaries in AZ this Summer?", Humble's blog on January 25 announced the goal to begin accepting dispensary applications by April. Of 2012. Humble further said that dispensaries could be operating by July or August. That would be a year behind schedule, sure, but much faster than Arizoneout thought possible.
What appeared to be a persistent logjam cleared so quickly only because of a decisive and well-reasoned opinion issued a week earlier by Judge J. Richard Gama of the Superior Court for Maricopa County. Judge Gama spent 22 years as a civil trial lawyer before being appointed to the court in 2000. He has handled family and juvenile court dockets, but has had a civil docket since 2007.
The case was brought by would-be dispensary applicants who were not eligible to apply for a license because of regulations issued by ADHS. The agency tried to get the case dismissed on procedural grounds, by arguing that it had complied with the AMMA by issuing regulations on the voter-adopted timetable, even though it had stopped implementing them back in May 2011.
Judge Gama was having none of that, labeling the State's argument "disingenuous." He ruled that the specific statutory language giving any citizen the right to sue to compel ADHS to implement the dispensary system if it failed to do so within 120 days gave him mandatory jurisdiction over the case. He added, "it would be a Pyrrhic victory for the voters were the Court to conclude otherwise."
That strong language was followed by an even stronger ruling. He threw out regulations hinging eligibility to apply for a dispensary license on being an Arizona resident and submitting a personal state income tax return for the previous three years, never filing for corporate or personal bankruptcy, and being current on child support, taxes and penalties, judgment debts to the government, and government subsidized student loans.
The AMMA itself specifies those persons who may be considered for dispensary licenses, and the list of exclusions is short: no felons, no one whose dispensary certificate has been revoked, and no one under 21. ADHS claimed authority to impose the other exclusions based on language in the AMMA authorizing regulations to protect against diversion and theft, and setting a cap on the total number of dispensaries.
Judge Gama was direct in his rejection of those arguments, saying ADHS could not "bootstrap substantive regulations of who may apply" onto its duty to regulatie dispensaries for the purpose of theft and diversion prevention.
Judge Gama let stand other regulations as "supplementary rules" to protect against theft and diversion that prohibited absentee ownership of 20% or more of a dispensary, and required proof either of ownership of the proposed site or the landlord's consent to use of the site as a dispensary.
The fact that Humble announced within a week of the ruling that his teams were "dotting the i's and crossing the t's" on revised regulations to comply with the ruling and to begin accepting applications immediately is a strong signal that the State does not plan to appeal Judge Gama's decision or to pursue any other legal remedies. Having lost two cases, the State apparently does not want to prolong its Groundhog Day on medical marijuana.
The case is important for reasons beyond its practical effect of clearing the roadblock and letting the dispensary licensing program go forward. It is the first opinion interpreting the AMMA, and it will be cited by the lawyers and judges deciding future AMMA cases. To disagree with Judge Gama, that future judge is going to have to explain why, which is why it is more often the case that the second judge finds the first judge's opinion to be persuasive precedent.
Compassion First LLC v. State established that officials of the State must carry out the will of the voters as expressed in the AMMA. Sooner than expected, Arizona will have dispensaries. That means employers will have more employees lawfully using or possessing marijuana among their workforce. Smart employers will be prepared by knowing their rights and responsibilities.
When Arizona Department of Health Services (ADHS) Director Will Humble said the dispensary application process might be further delayed by a pending lawsuit challenging his agencyʼs regulations implementing the Arizona Medical Marijuana Act (AMMA), even after the State's federal lawsuit was dismissed, Arizoneout predicted the dispensaries' legal limbo would extend for many months.
Wrong, wrong.
Under the headline "Dispensaries in AZ this Summer?", Humble's blog on January 25 announced the goal to begin accepting dispensary applications by April. Of 2012. Humble further said that dispensaries could be operating by July or August. That would be a year behind schedule, sure, but much faster than Arizoneout thought possible.
What appeared to be a persistent logjam cleared so quickly only because of a decisive and well-reasoned opinion issued a week earlier by Judge J. Richard Gama of the Superior Court for Maricopa County. Judge Gama spent 22 years as a civil trial lawyer before being appointed to the court in 2000. He has handled family and juvenile court dockets, but has had a civil docket since 2007.
The case was brought by would-be dispensary applicants who were not eligible to apply for a license because of regulations issued by ADHS. The agency tried to get the case dismissed on procedural grounds, by arguing that it had complied with the AMMA by issuing regulations on the voter-adopted timetable, even though it had stopped implementing them back in May 2011.
Judge Gama was having none of that, labeling the State's argument "disingenuous." He ruled that the specific statutory language giving any citizen the right to sue to compel ADHS to implement the dispensary system if it failed to do so within 120 days gave him mandatory jurisdiction over the case. He added, "it would be a Pyrrhic victory for the voters were the Court to conclude otherwise."
That strong language was followed by an even stronger ruling. He threw out regulations hinging eligibility to apply for a dispensary license on being an Arizona resident and submitting a personal state income tax return for the previous three years, never filing for corporate or personal bankruptcy, and being current on child support, taxes and penalties, judgment debts to the government, and government subsidized student loans.
The AMMA itself specifies those persons who may be considered for dispensary licenses, and the list of exclusions is short: no felons, no one whose dispensary certificate has been revoked, and no one under 21. ADHS claimed authority to impose the other exclusions based on language in the AMMA authorizing regulations to protect against diversion and theft, and setting a cap on the total number of dispensaries.
Judge Gama was direct in his rejection of those arguments, saying ADHS could not "bootstrap substantive regulations of who may apply" onto its duty to regulatie dispensaries for the purpose of theft and diversion prevention.
Judge Gama let stand other regulations as "supplementary rules" to protect against theft and diversion that prohibited absentee ownership of 20% or more of a dispensary, and required proof either of ownership of the proposed site or the landlord's consent to use of the site as a dispensary.
The fact that Humble announced within a week of the ruling that his teams were "dotting the i's and crossing the t's" on revised regulations to comply with the ruling and to begin accepting applications immediately is a strong signal that the State does not plan to appeal Judge Gama's decision or to pursue any other legal remedies. Having lost two cases, the State apparently does not want to prolong its Groundhog Day on medical marijuana.
The case is important for reasons beyond its practical effect of clearing the roadblock and letting the dispensary licensing program go forward. It is the first opinion interpreting the AMMA, and it will be cited by the lawyers and judges deciding future AMMA cases. To disagree with Judge Gama, that future judge is going to have to explain why, which is why it is more often the case that the second judge finds the first judge's opinion to be persuasive precedent.
Compassion First LLC v. State established that officials of the State must carry out the will of the voters as expressed in the AMMA. Sooner than expected, Arizona will have dispensaries. That means employers will have more employees lawfully using or possessing marijuana among their workforce. Smart employers will be prepared by knowing their rights and responsibilities.
Tuesday, January 17, 2012
Wrong On Appeal, Not On Length Of Dispensary Limbo
In a January 5, 2012 post, Arizoneout predicted that the state would appeal the dismissal of its lawsuit against the U.S. Government, and that the status of the 126 dispensaries that voters authorized when they passed the Arizona Medical Marijuana Act (AMMA) would remain in limbo for many months.
As it turns out, Arizoneout was wrong about the appeal. Last Friday, which happened to be a Friday the Thirteenth and the eve of a three-day holiday weekend, Governor Jan Brewer issued a press release announcing that the state was not going to refile in federal district court, and that she had directed the Arizona Department of Health Services (ADHS) to begin accepting and processing dispensary applications.
“With our request for clarification rebuffed on procedural grounds by the federal court, I believe the best course of action now is to complete the implementation of Proposition 203 in accordance with the law,” Governor Brewer said in the statement.
ADHS Director Will Humble posted notice of the Governor’s decision on his blog. But Humble’s post made it clear that full implementation of the dispensary system created by the AMMA still was full of uncertainty and was many months away, even under the best case scenario.
Step one according to Humble is setting up a new timetable for dispensary applications, a rulemaking process that itself will take so much time that the earliest ADHS will begin taking applications is sometime this summer!
But Humble sent a strong signal that other litigation may delay the process further. Humble referred to another pending lawsuit that challenges the scope and constitutionality of ADHS’ medical marijuana rules, stating that it “complicates” the process. Only if that lawsuit is withdrawn or settled could ADHS start taking dispensary applications this summer, Humble says. So best case, the dispensaries would be in place a full year after Arizona voters anticipated they would be.
That best case scenario is unlikely to present itself, however, as Compassion First AZ, the organization prosecuting the suit, has announced that it does not plan to drop the case.
For her part, Governor Brewer does not promise a hands-off approach going forward. She concluded her press release with this warning: “Know this: I won’t hesitate to halt State involvement in the AMMA if I receive indication that State employees face prosecution due to their duties in administering this law.”
As it turns out, Arizoneout was wrong about the appeal. Last Friday, which happened to be a Friday the Thirteenth and the eve of a three-day holiday weekend, Governor Jan Brewer issued a press release announcing that the state was not going to refile in federal district court, and that she had directed the Arizona Department of Health Services (ADHS) to begin accepting and processing dispensary applications.
“With our request for clarification rebuffed on procedural grounds by the federal court, I believe the best course of action now is to complete the implementation of Proposition 203 in accordance with the law,” Governor Brewer said in the statement.
ADHS Director Will Humble posted notice of the Governor’s decision on his blog. But Humble’s post made it clear that full implementation of the dispensary system created by the AMMA still was full of uncertainty and was many months away, even under the best case scenario.
Step one according to Humble is setting up a new timetable for dispensary applications, a rulemaking process that itself will take so much time that the earliest ADHS will begin taking applications is sometime this summer!
But Humble sent a strong signal that other litigation may delay the process further. Humble referred to another pending lawsuit that challenges the scope and constitutionality of ADHS’ medical marijuana rules, stating that it “complicates” the process. Only if that lawsuit is withdrawn or settled could ADHS start taking dispensary applications this summer, Humble says. So best case, the dispensaries would be in place a full year after Arizona voters anticipated they would be.
That best case scenario is unlikely to present itself, however, as Compassion First AZ, the organization prosecuting the suit, has announced that it does not plan to drop the case.
For her part, Governor Brewer does not promise a hands-off approach going forward. She concluded her press release with this warning: “Know this: I won’t hesitate to halt State involvement in the AMMA if I receive indication that State employees face prosecution due to their duties in administering this law.”
Thursday, January 5, 2012
Federal Judge Won't Give State Guidance on AMMA
The federal lawsuit that Governor Jan Brewer filed in May 2011 at the same time she stopped full implementation of the Arizona Medical Marijuana Act (AMMA) was tossed out yesterday. But don’t expect the state to start licensing medical marijuana dispensaries any time soon.
Arizoneout has reported from time to time on the political and legal maneuvers that have created a worst-case scenario in which thousands of Arizonans have a state permit to use marijuana for medical purposes, but no legal way to obtain it other than growing their own.
At the same time she sued, Governor Brewer halted the dispensary licensing process. The gist of the State’s claim was that state workers implementing the dispensaries could be in jeopardy of federal prosecution, because marijuana is illegal for all purposes under federal law. Governor Brewer tried to stay neutral, asking the federal court to decide whether the AMMA and federal law could co-exist.
In an ironic twist, the AMMA case landed before U.S. District Judge Susan Bolton, the same judge who struck down provisions of S.B. 1070, Arizona’s controversial immigration law, ruling that it was pre-empted by federal law. The S.B. 1070 case is now before the U.S. Supreme Court.
At a hearing last month, Judge Bolton told the State that it could not sit on the fence but would have to take a position in the lawsuit on whether federal law trumped the AMMA. A few days later, the State filed a notice that it would be amending the suit by January 9, 2012, and asked Judge Bolton to wait until then to rule on the various pending motions to throw out the case.
The State’s court papers did not indicate what position Governor Brewer would be taking, but her spokesman reportedly said that Arizona would argue that federal law trumped the dispensary provisions of the AMMA.
Many commentators have skewered Governor Brewer for what they perceive as hypocrisy in the different positions she has taken on the two laws. A good recent example is E.J. Montini’s New Year’s Day column in the Arizona Republic.
Judge Bolton did not wait for the State’s promised filing, finding that the “scant detail” in the State’s notice was insufficient. She gave the State until February 3, 2012 to file an amended lawsuit, but signaled that she doubted there was any basis to “substantiate a credible, specific warning or threat to initiate criminal proceedings against state employees in Arizona if they were to enforce the AMMA.”
Governor Brewer’s spokesman told the Republic yesterday that she was consulting with Arizona Attorney General Tom Horne on whether to appeal. Arizoneout is predicting the state officials will decide to appeal, and that the AMMA’s dispensary licensing program will remain in limbo for many more months.
Arizoneout has reported from time to time on the political and legal maneuvers that have created a worst-case scenario in which thousands of Arizonans have a state permit to use marijuana for medical purposes, but no legal way to obtain it other than growing their own.
At the same time she sued, Governor Brewer halted the dispensary licensing process. The gist of the State’s claim was that state workers implementing the dispensaries could be in jeopardy of federal prosecution, because marijuana is illegal for all purposes under federal law. Governor Brewer tried to stay neutral, asking the federal court to decide whether the AMMA and federal law could co-exist.
In an ironic twist, the AMMA case landed before U.S. District Judge Susan Bolton, the same judge who struck down provisions of S.B. 1070, Arizona’s controversial immigration law, ruling that it was pre-empted by federal law. The S.B. 1070 case is now before the U.S. Supreme Court.
At a hearing last month, Judge Bolton told the State that it could not sit on the fence but would have to take a position in the lawsuit on whether federal law trumped the AMMA. A few days later, the State filed a notice that it would be amending the suit by January 9, 2012, and asked Judge Bolton to wait until then to rule on the various pending motions to throw out the case.
The State’s court papers did not indicate what position Governor Brewer would be taking, but her spokesman reportedly said that Arizona would argue that federal law trumped the dispensary provisions of the AMMA.
Many commentators have skewered Governor Brewer for what they perceive as hypocrisy in the different positions she has taken on the two laws. A good recent example is E.J. Montini’s New Year’s Day column in the Arizona Republic.
Judge Bolton did not wait for the State’s promised filing, finding that the “scant detail” in the State’s notice was insufficient. She gave the State until February 3, 2012 to file an amended lawsuit, but signaled that she doubted there was any basis to “substantiate a credible, specific warning or threat to initiate criminal proceedings against state employees in Arizona if they were to enforce the AMMA.”
Governor Brewer’s spokesman told the Republic yesterday that she was consulting with Arizona Attorney General Tom Horne on whether to appeal. Arizoneout is predicting the state officials will decide to appeal, and that the AMMA’s dispensary licensing program will remain in limbo for many more months.
Tuesday, January 3, 2012
Resolve To Adopt Defensible Workplace Policies On Medical Marijuana
On this the first work day of 2012 in most places of employment, it is an appropriate time to reflect on the past year and resolve to make changes for the year ahead. In my professional discussions about the Arizona Medical Marijuana Act (AMMA), I find that employers typically have not had to confront the issue and thus are not taking proactive steps to develop policies they can defend.
Nevertheless, the number of Qualified Patients (QPs) licensed by the state to use medical marijuana continues to grow. The Arizona Department of Health Services (ADHS) has not yet issued its year-end report, but as of November 25, 2011, more than 16,000 QPs had ADHS-issued ID cards making their use and possession of limited quantities of marijuana legal under state law.
According to the U.S. Census bureau, Arizona had 134,000 private, non-farm employer establishments in 2009. So by a very rough estimation, we should expect that about 10 percent of Arizona employers have a QP among their workers.
There is no one-size-fits-all template for good medical marijuana policies that all employers should adopt. But here is a good checklist of questions to ask in developing a defensible policy that meets your individual business needs:
While it is a complicated analysis, it is one every Arizona employer should undertake. Arizona workers are using marijuana lawfully for medical purposes. Resolve in 2012 to stop ignoring that reality.
Nevertheless, the number of Qualified Patients (QPs) licensed by the state to use medical marijuana continues to grow. The Arizona Department of Health Services (ADHS) has not yet issued its year-end report, but as of November 25, 2011, more than 16,000 QPs had ADHS-issued ID cards making their use and possession of limited quantities of marijuana legal under state law.
According to the U.S. Census bureau, Arizona had 134,000 private, non-farm employer establishments in 2009. So by a very rough estimation, we should expect that about 10 percent of Arizona employers have a QP among their workers.
There is no one-size-fits-all template for good medical marijuana policies that all employers should adopt. But here is a good checklist of questions to ask in developing a defensible policy that meets your individual business needs:
- Do my existing policies prohibit what the AMMA allows employers to prohibit − ingestion of medical marijuana in the workplace and working while impaired by the use of medical marijuana?
- Do I fall within the exemption that allows discrimination against protected AMMA Cardholders, because failing to do so would cause the employer to lose a monetary or licensing related benefit under federal laws or regulations? The exemption is narrow and applies mainly to certain employees in the transportation industry. See the July 25 and August 3 posts
- Do I have employees working in such safety-sensitive positions that they need to be transferred out of those positions for the duration of their treatment with medical marijuana? See the December 13 post.
- What is my existing drug testing policy, and does it comply with the Arizona Drug Testing of Employees Act? If not, what can I do to bring it into compliance? See the September 23, 27, 29 and October 7, 12, 19, 21 and 24 posts.
- Do I have a business need to bar my employees from bringing medical marijuana onto the premises and, if so, how can I enforce the policy? See the June 24 and 30 posts.
While it is a complicated analysis, it is one every Arizona employer should undertake. Arizona workers are using marijuana lawfully for medical purposes. Resolve in 2012 to stop ignoring that reality.
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