Arizona voters recently approved Proposition 203, the Arizona Medical Marijuana Act, making Arizona the 15th state to have an approved medical marijuana law. The law will become effective four months after all the ballots are canvassed on November 29, 2010. The Arizona Department of Health Services will post the formal regulations for the law by March 28, 2011.

Arizona’s law permits residents who suffer from certain debilitating and life-threatening illnesses to possess and use medical marijuana. Specifically, the law cites the following "debilitating medical conditions":

  • Cancer, glaucoma, HIV, AIDS, hepatitis C, ALS, Crohn's disease, agitation of Alzheimer's disease, or the treatment of these conditions
  • A chronic or debilitating disease or its treatment that produces cachexia or wasting syndrome; severe and chronic pain; severe nausea; seizures, including those characteristic of epilepsy; or severe and persistent muscle spasms, including those consistent with multiple sclerosis
  • Any other medical condition or its treatment later deemed by the Arizona Department of Health to constitute a "chronic medical condition"

The main purpose of the law is to protect patients who use marijuana to alleviate suffering, and physicians who prescribe marijuana for such use, from arrest, property forfeiture, prosecution, and criminal and other penalties. In addition, the law expressly prohibits employment discrimination against employees who use medical marijuana:

"[A]n employer may not discriminate against a person in hiring, terminating or imposing a term or condition of employment or otherwise penalize a person based upon the person’s status as a registered cardholder or a registered qualifying patient's positive drug test for marijuana."

However, its anti-discrimination provisions do not apply if an applicant or employee "used, possessed or was impaired by marijuana on the premises of the place of employment or during hours of employment."

One common question involves whether an employer can ask applicants if they use medical marijuana. Employers are discouraged from doing so because the law specifically prohibits discrimination on such grounds. Employers are, however, free to inquire as to whether an applicant requires certain accommodations to perform the required job functions.

If applicants or employees voluntarily inform the employer of their medical use of marijuana, or if an employee tests positive in pre-employment drug screening, this conceivably can put the employer on "notice" that the employee may suffer from a disability, thus triggering the employer's duty to accommodate under the Americans with Disabilities Act. The employer may then engage in the interactive process designed to determine what, if any, reasonable accommodations must be made. However, employers should refrain from making adverse employment decisions solely on the basis of an applicant's or employee's admitted use of medical marijuana without first seeking guidance from legal counsel.

Another area of concern involves the possible effect of the medical marijuana law on current leave policies at Arizona companies. Certain debilitating medical conditions as defined under the law are likely to be construed as serious medical conditions for purposes of receiving FMLA leave. Accordingly, if an employee or an employee's family member has a condition requiring him or her to use medical marijuana, the employee may be eligible for FMLA leave. As the law takes shape, employers should begin reviewing and revising their leave policies to take into consideration the implications of the new statute.

What Employers Can Do Now

  • Review policies and forms dealing with drug use and testing and update them so they expressly state the required legal standard regarding medical marijuana use by applicants and employees and make clear that testing includes medical marijuana.
  • Ensure that the status of applicants and/or employees as medical marijuana users is kept confidential and disclosed only to those with a need to know.
  • As with all policies, consistently apply disability, leave of absence, and drug-testing policies to make sure responses are uniform.
  • Consult with counsel before making any determinations as to the employment status of an applicant or employee who discloses that he or she is taking medical marijuana or who tests positive for such use