With the passage of Proposition 203, Arizona became the 15th state to legalize marijuana for medicinal purposes. The Arizona Medical Marijuana Act (the “Act”) permits a qualifying patient with a debilitating medical condition to obtain marijuana from a medical marijuana dispensary and to use the marijuana to treat or alleviate the condition.[1] A qualifying patient is a person who has been diagnosed with a debilitating medical condition, such as cancer, hepatitis C, or any chronic or debilitating disease that produces severe pain or nausea. That person can register with the Arizona Department of Health Services (“DHS”) and receive an identification card that allows the patient to obtain marijuana from a dispensary. The Act will not become truly effective until sometime in the Spring of 2011 after DHS publishes the required regulations and issues identification cards.

Employers are Prohibited from Discriminating Against Registered Medical Marijuana Patients

The new law prohibits employers from discriminating against card-holding medical marijuana users based upon: “(1) The person’s status as a cardholder; or (2) A registered qualifying patient’s positive drug test for marijuana components or metabolites....”[2] The Act creates a limited exception for employers who would “lose a monetary or licensing related benefit under federal law or regulations.[3] Thus, under certain circumstances, employers may be exempt from the nondiscrimination provisions of the Act if they are federal contractors or subcontractors required to comply with the Federal Drug-Free Workplace Act, employ drivers holding commercial driver licenses, or employ workers in other federally regulated industries such as air travel or nuclear power. Because it is unclear how federal and state law will apply in these circumstances, such employers should consult with legal counsel before taking disciplinary action against employees who test positive for marijuana or its metabolites.

Despite the nondiscrimination provision, registered cardholders may not use, possess, or be impaired by marijuana in the workplace or during the hours of employment, and nothing in the Act prohibits an employer from disciplining an employee for ingesting marijuana in the workplace or working while under the influence of marijuana. Unfortunately, the law does not define what it means to be “impaired” by or “under the influence” of marijuana. Unlike alcohol, where it is generally accepted that a person is legally impaired when their blood alcohol content reaches .08 percent, there is no generally accepted standard for measuring impairment for marijuana users. Studies have shown that marijuana can stay in a person’s body for up to 100 days, but it is unlikely that a person is impaired for the same length of time. Thus, the standard for “impairment” will be open to interpretation until the legislature, DHS regulations or the courts clarify its meaning.

Employers Should Review Their Employment Policies

Employers should consider amending their policies to address issues raised by the Act. In most circumstances, medical marijuana should be treated like other prescription medications that could impair an employee’s ability to perform job functions. Employers should also determine whether they benefit from federal licensing or contracts and ascertain whether federal law may exempt them from the nondiscrimination provisions of the Act.