the arizona medical marijuana act: the implications for ......recreational marijuana laws...

© 2011 Jackson Lewis LLP

© 2011 Jackson Lewis LLP www.jacksonlewis.com

SCCE’s Regional Compliance & Ethics Conference

Jeffrey ToppelJackson Lewis P.C., Phoenix2398 E. Camelback RoadSuite 1060Phoenix, Arizona 85016(602) [email protected]

The Arizona Medical Marijuana Act:

The Implications for Employers

Prop 203 …Passes by Thread

It took over a week after the November2011 election for the “Yes” on Prop 203vote to overcome the “No” vote but itultimately did in a barnburner.

• YES = 841,348• NO = 837,008

MARGIN = 4,340


State Law vs. Federal Law

Lets Not Forget:

Marijuana is Still Illegal under Federal Law

Raich v. Gonzales: In 2005, the U.S. Supreme

confirmed that marijuana is still illegal drug under

federal law, and that federal law trumps state

medical marijuana laws.

Federal Law

• Controlled Substance Act: Under the Act, marijuana is

a Schedule 1 illegal drug that may not be used,

possessed, manufactured or distributed, even for

medical purposes. Schedule 1 drugs are categorized as

such because of their high potential for abuse, lack of

any accepted medical use, and absence of any

accepted safety for use in medically supervised

treatment. 21 U.S.C. § 812(b)(1).

• In 2011, the federal Drug Enforcement rejected a

petition to reschedule Schedules III, IV or IV. A federal

appeals upheld this decision in January 2013.


Decreased Federal Enforcement

Attorney General Eric Holder announced formal guidelines for

federal prosecutors in states that have enacted laws

authorizing the use of marijuana for medical purposes:

“The prosecution of significant traffickers of illegal drugs,

including marijuana, and the disruption of illegal drug

manufacturing and trafficking networks continues to be a core

priority in the Department’s efforts against narcotics and

dangerous drugs, and the Department’s investigative and

prosecutorial resources should be directed towards these

objectives. As a general matter, pursuit of these priorities

should not focus federal resources in your States on individuals

whose actions are in clear and unambiguous compliance with

existing state laws providing for the medical use of marijuana.”

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Arizona: Not Exactly a Pioneer

• Arizona

• Alaska

• California

• Colorado

• Connecticut

• Delaware

• District of Columbia

• Hawaii

• Illinois

• Guam

• Maryland

• Maine

• Michigan

• New Mexico

• Oregon

• Rhode Island

• Vermont

• Washington

• Montana

• New Jersey

• Nevada

• Washington

• Massachusetts

• New York

• New Hampshire

Since California passed Prop 215 in 1996, 23 states and DC have passed medical marijuana legislation:


Turning A New Leaf: Recreational Marijuana Laws

•Colorado: In Nov.

2014, CO Amendment

64 was approved

permitting the use of

marijuana by adults

over the age 21.

•Washington: In Nov.

2014, Initiative 502 was

passed allowing the

state to distribute

marijuana for 21 years

and older.

•Oregon: In Nov. 2014,

voters approved a

statute legalizing

marijuana use and

create a network of

retail marijuana stores.

• Alaska: Passed a law

in Nov. 2014 legalizing

recreational marijuana

and establishing a

network of retail

marijuana stores.

Arizona Medical Marijuana CardsBy the Numbers

Since the AZ Dept. of Health and Human Services

started issuing cards to qualifying patients in April

2011*:

• 63,417 active cardholders

61,272 qualify patients (including minors)

639 designated cardholders

1,506 dispensary agents

• 70% of the cardholders are male

• 80% of cardholders are within ages of 18‐60

*Statistics are from the Arizona Department of Health Services’ 2014

AMMA Year End Report.


AMMABy the Numbers

The AMMA specifically defines “debilitation medical

condition” to include a number of specific medical

conditions, as well as “a chronic or debilitating disease

or medical condition” that produces one of a number

of symptoms, including “severe and chronic pain.”

Over 70% of the cards issued have been for “severe

and chronic” pain.

20% of the cards have been issued to cardholders

who have multiple conditions.

Starting Jan. 1, 2015, Post‐Traumatic Stress

Disorder (PTSD) was added to the list of qualifying

conditions.

The Haves and Have Nots

Of the several states (and DC) that have enacted

medical marijuana legislation, several states have

included some form of workplace protections for

medical marijuana users, or interpreted their statute

to include such protections, while several other states

– including California – have not included any

workplace protections. Arizona’s protections are

among the most comprehensive in the country.


Guidance from Other States

• CALIFORNIA – Ross v. Ragingwire Telecommunications, Inc.,

174 P.3d 200 (Ca. 2008):

• Plaintiff required to take drug test as part of a promotion.

Plaintiff fails test and subsequently fired. Court ruled for

employer, finding that there was no policy in law requiring

employers to accommodate medical marijuana uses.

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Guidance from Other States

OREGON – Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries

Oregon's Supreme Court ruled that Oregon law does not require

employers to accommodate the use of illegal drugs, including

medical marijuana. The Court concluded that while the state may

lawfully "exempt" medical‐marijuana users from state criminal

liability, it may not "authorize" conduct that directly conflicts with

federal law.

WASHINGTON ‐ Roe v. Teletech Customer Care Management

Court ruled that Washington’s Medical Use of Marijuana Act does not

protect medical marijuana users from adverse hiring or disciplinary

decisions based on an employer’s drug test policy.


Dispensaries

The number of dispensaries is based on the number of

pharmacies in AZ. There cannot be more than 1 dispensary

for every 10registered pharmacies.

After much litigation, dispensaries started opening in

December 2012.

A dispensary may cultivate marijuana at the dispensary or

at a cultivation site, but the location of the dispensary and

the cultivation site needs to be in compliance with local

zoning restrictions.

A qualifying patient or the qualifying patient's designated

caregiver may cultivate medical marijuana if the qualifying

patient lives more than 25 miles from the nearest

dispensary.

The AMMA’sWorkplace Provisions

Non‐Discrimination Provision

A.R.S. § 36‐2813

B. Unless a failure to do so would cause an employer to lose amonetary or licensing related benefit under federal law orregulations, an employer may not discriminate against aperson in hiring, termination or imposing any term orcondition of employment or otherwise penalize a personbased upon either:

1. The person’s status as a cardholder.

2. A registered qualifying patient’s positive drug test formarijuana components or metabolites, unless thepatient used, possessed or was impaired by marijuanaon the premises of the place of employment or duringthe hours of employment.


The Proposition’s Workplace Provisions

Employer Rights Provision

A.R.S. § 36‐2814

A. Nothing in this chapter requires:

***

3. An employer to allow the ingestion of marijuana in anyworkplace or any employee to work while under theinfluence of marijuana, except that a registeredqualifying patient shall not be considered to be underthe influence of marijuana solely because of thepresence of metabolites or components that appear ininsufficient concentration to cause impairment.

B. Nothing in this chapter prohibits an employer fromdisciplining an employee for ingesting marijuana in theworkplace or working while under the influence ofmarijuana.

HB 2541: A Step in the Right Direction

On April 29, 2011, Gov. Brewer signed into law HB

2541, which amends Arizona’s existing drug

testing status and adds important protections to

employers.

Arizona’s Drug Testing Statute, A.R.S. § 23‐493, et

seq.: Provides a “safe harbor” to employers from

certain civil liability arising out of drug testing if

the employer has a written policy that complies

with the statute’s very specific requirements.


HB 2541: Important Protections for Employers

Key Protection: No cause of action may be

established against an employer that is based on the

employer’s “good faith” belief that the employer

either used or possessed any drug, or had an

“impairment” while working, while on the

employer’s premise or during the hours of

employment.

HB 2541: “Good Faith” Belief

“Good Faith” Belief: An employer may consider all of the

following when determining the existence of drug abuse or

possession:

• (1) Observed conduct, behavior or appearance;

• (2) Info reported by a person believed to be reliable;

• (3) Written, electronic or verbal statements;

• (4) Lawful surveillance;

• (5) Records of government agencies, law

enforcement, etc.;

• (6) Results of a test for use of alcohol or drugs; and

• (7) Other info reasonably believed to be reliable or

accurate.


HB 2541: “Impairment”

The amended statute lists numerous symptoms indicating “that

a prospective employee or employee while working may be

under the influence of drugs or alcohol that may decrease or

lessen the employee’s performance of the duties or tasks of the

employee’s job position.” These symptoms, include:

• Walking, standing, physical dexterity, agility, coordination,

actions, movement, demeanor, appearance, clothing, and

odor;

• Negligence or carelessness in operating equip., machinery, or

production or manufacturing process;

• Disregard for the safety of others or involvement in accident;

• Any injury to the employee or others or other symptoms

causing reasonable suspicion of the use of drugs or alcohol.

HB 2541: “Safety Sensitive Position”

Definition: “Any job designated by an employer” or “any job that

includes tasks or duties that the employer in good faith believes could

affect the safety or health of the employee performing the task or

others.”

Protection: Protects an employer that excludes an employee from

performing a “safety‐sensitive position” by – among other things –

“reassigning the employee to another position or placing an employee

on paid or unpaid leave.”

• Employer may look to several of factors evaluating the “effects” a

drug may have on the employee’s abilities

• “Current Use of Any Drugs” is defined as use that “has occurred

recently enough to justify an employer’s reasonable belief that

involvement with the drug is ongoing.”


The Americans with Disabilities Act

• The Federal Controlled Substances Act state that

marijuana is illegal and has “no accepted medical

use.”

• Accordingly, use of medical marijuana cannot

be considered a reasonable accommodation.

• The ADA expressly excepts illegal drug use from

coverage, so employers do not need to

accommodate illegal drug use.

• You still need to consider whether the underlying

condition – i.e. the condition that qualified the

employee for medical marijuana – entitles the

employee to the protections of the ADA.

Quick Tips for Compliance with the Medical Marijuana Act

• Review your drug testing policy for compliance

with Arizona’s newly amended drug testing law.

• Familiarize managers with the Act’s definitions of

“impairment” and train them to recognize signs

of impairment or drug abuse and how to address

these situations.

• Review your company’s positions to determine

whether any may be classified as a “safety

sensitive” position.


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