On December 17, 2010, the Arizona Department of Health Services began the first phase of the rulemaking process related to Proposition 203 by releasing its initial draft rules (“Initial Draft Rules”) on the Medical Marijuana Program. Following several weeks of public comment, ADHS released its final draft rules (“Final Draft Rules”) on the Medical Marijuana Program on January 31, 2011.
From now until February 18, 2011, ADHS will be accepting informal, electronic public comment on the final draft rules. After this comment period, ADHS will publish the final rules that will be used to implement the Arizona Medical Marijuana Act on March 28, 2011.
Revisions to the Initial Draft Rules
The Final Draft Rules modified some of the definitions included in the Initial Draft Rules. For example, the Act stated that an employer could not be said to be discriminating against an individual by disallowing that individual to use marijuana on the premises of employment or during the hours of employment. See Proposition 203 § 36-2813(B)(2). The Final Draft Rules define a “working day” as “a Monday, Tuesday, Wednesday, Thursday, or Friday that is not a state holiday or a statewide furlough day.” See Final Draft Rules § R9-17-101(24). (This represents a slight modification in the definition included in the Initial Draft Rules, which defined working day as the period from 8:00 a.m. to 5:00 p.m. on these days.)
Additionally, under the Act, individuals are precluded from smoking marijuana in a “public place.” See Final Draft Rules § R9-17-101(24). However, because the Act did not define the term “public place,” the Initial Draft Rules enumerated several locations that will be considered to be public places, including airports, banks, bars, child care facilities, child care group homes during hours of operation, common areas of apartment buildings, condominiums or other multifamily housing facilities, educational facilities, entertainment facilities or venues, hotel and motel common areas, Laundromats, libraries, office buildings, parks, parking lots, public transportation facilities, reception areas, restaurants, retail food production or marketing establishments, retail service establishments, retail stores, shopping malls, sidewalks, sports facilities, theatres, warehouses, and waiting rooms. See Final Draft Rules § R9-17-101(21)(b). To this list, the Final Draft Rules have also added “health care institutions” as among the places where smoking marijuana will be prohibited. See id.
The Final Draft Rules have not provided any additional guidance as to when an individual can be said to be impaired by marijuana. Thus, the standard remains what was set forth in the Act: Individuals cannot use marijuana in public or at work, and cannot be impaired by marijuana at work. This continues to present a problem for employers who want to keep the workplace safe by disciplining individuals who are found to have marijuana or its metabolites present in their systems while at work, because neither the Act nor the Final Draft Rules address a definition of “impaired by” that complies. Whether these and ny other gaps will be addressed when the final Rules are adopted on March 28, 2011 will depend, at least in part, on the comments that ADHS receives during the informal public comment period taking place from now through February 18, 2011.