Cheech: “Hey man, how’s my driving?”
Chong: “I think we’re parked, man.”
ARIZONA’S MEDICAL MARIJUANA ACT
In 2010, Arizona legalized the use of medical marijuana. The Arizona Medical Marijuana Act (the “Medical Marijuana Act”) severely limits employers in their workplace decisions based on employees’ authorized use of medical marijuana. It is perhaps the most pro-employee marijuana legislation in the nation. The legislation is a potential trap for Arizona employers with strong substance abuse policies and has caught many Arizona employers off-guard. Who would have thought that marijuana smoking employees would be granted more protection against termination than those who smoke conventional tobacco?
The Medical Marijuana Act prohibits employers from discriminating against medical marijuana cardholders as follows: “Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person” based upon the person’s status as a medical marijuana cardholder or a registered patient’s positive drug test for marijuana components or metabolites. In other words, subject to certain situations set forth in this newsletter, an Arizona employer may not fire a card holding employee solely on the basis of that employee’s positive marijuana drug test.
The Medical Marijuana Act, however, is not a license for card holding employees to show up to work while impaired. Under the law, “nothing prohibits an employer from disciplining an employee for ingesting marijuana in the workplace or working while under the influence of marijuana.” Employers must thus walk a fine line: they cannot fire employees solely for showing up to work with marijuana in their systems, but they can (and should) discipline or discharge employees who are “working while under the influence of marijuana.”
THE “SAFETY-SENSITIVE POSITION” EXCEPTION
Employers may lawfully refuse to place any employee who is using medications, including marijuana, in a “safety-sensitive position.” Employers must therefore determine which of their employees occupy safety-sensitive positions. Any employee occupying such a position can be removed from that position if any drug, including marijuana, could cause impairment or decrease the employee’s job performance or duties. The employer must have a “good faith belief” of such based on: drug or alcohol test results; warning labels or other instructions for the use of the drug; statements by the employee; medical certification from a physician or pharmacist; or information from reputable reference sources or other information the employer believes to be reliable. Among other options, an employer may reassign the employee to another position or place the employee on paid or unpaid leave.
“Safety-sensitive position” means any job reasonably designated by an employer as a safety-sensitive position 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, including any of the following:
- Operating a motor vehicle, other vehicle, equipment, machinery or power tools.
- Repairing, maintaining or monitoring the performance or operation of any equipment, machinery or manufacturing process, the malfunction or disruption of which could result in injury or property damage.
- Performing duties in the residential or commercial premises of a customer or vendor.
- Preparing or handling food or medicine.
- Working in any occupation regulated under Arizona Revised Statutes Title 32 (generally medical, engineering, pharmacy, security).
IMPAIRED EMPLOYEES ARE NOT PROTECTED BY THE ACT
The Medical Marijuana Act is not a license to come to work stoned or otherwise impaired. “Impairment” means symptoms that a prospective employee or employee while working may be under the influence of drugs or alcohol, including diminished capacity for: speech, walking, standing, physical dexterity, agility, coordination, actions, movement; as well as an employee’s demeanor, appearance, clothing, body odor, irrational or unusual behavior, negligence or carelessness in operating equipment, machinery or production or manufacturing processes, disregard for the safety of the employee or others, involvement in an accident that results in serious damage to equipment, machinery or property, disruption of a production or manufacturing process, any injury to the employee or others or other symptoms causing a reasonable suspicion of the use of drugs or alcohol.
Impairment can be determined by: observed conduct, behavior or appearance; information reported by a person believed to be reliable, including a report by a person who witnessed the use or possession of drugs or drug paraphernalia at work; written, electronic, or verbal statements; lawful video surveillance; records of government agencies, law enforcement agencies or courts; results of a test for the use of alcohol or drugs; or other information reasonably believed to be reliable or accurate.
The Medical Marijuana Act does not condone or permit impaired employees — whether the impairment is from marijuana, prescription pills, or other substances — to roam the workplace. The most significant challenge for employers is to determine whether a marijuana card holding employee who tests positive is actually “impaired” on the job, or is not impaired and simply using marijuana away from work — a use specifically authorized and protected by Arizona law. Employers should never look the other way when an employee tests positive for drugs. Such a practice exposes employers to significant costs and liability. Now, however, firing an employee solely for testing positive on a drug test can create its own liability. Employers must balance these competing concerns and make careful, reasoned, and supportable decisions.
For an interesting look at how mainstream views have changed, check out this trailer from the 1938 classic, “Reefer Madness.”