Avoiding the Weeds In Complying with Arizona s Medical Marijuana Act

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1 Avoiding the Weeds In Complying with Arizona s Medical Marijuana Act PRESENTED BY: MARY ELLEN SIMONSON LAURA PASQUALONE Marijuana Laws in Other States In 1996 California became the first state to legalize medical use and sale of marijuana. Now, twenty states and the District of Columbia have laws legalizing marijuana in some form. So far, only Colorado and Washington state have legalized marijuana for recreational use, while other states including Arizona permit medical marijuana. At the federal level, marijuana remains classified as a Schedule I substance under the Controlled Substances Act with no accepted medical use LEWIS ROCA ROTHGERBER 1

2 Marijuana Laws in Other States Marijuana Laws in Other States 2014 LEWIS ROCA ROTHGERBER 2

3 Marijuana Laws in Other States Most states medical marijuana laws do not address the employment issues implicated by the statutes. Courts in several of these states have concluded that the protection afforded under the statutes is limited to the decriminalization of medical marijuana. These courts generally uphold the right of the employers to terminate or otherwise discipline employees whose use of medical marijuana violates drug-free workplace policies. Arizona s Statute In November of 2010, Arizona voters passed by a narrow margin Proposition 201, now commonly known as the Arizona Medical Marijuana Act. Arizona s statute is unique: Employers may not discriminate against a person in hiring, termination, or other terms or conditions of employment based on the person s status as a cardholder. Employers may not discriminate based on a card holder s positive drug test for marijuana unless the cardholder used, possessed or was impaired by marijuana at work or during working hours Only Delaware has a similar statute LEWIS ROCA ROTHGERBER 3

4 What the Act Does and Does Not Do: The Act does not require employers to allow the use of medical marijuana at work or to allow any employee to work while under the influence of marijuana. The Act does not limit an employer s ability to test an employee or applicant for possible impairment or for the use of illegal drugs. The Act does not prevent an employer from disciplining an employee based on the employee s refusal to submit to a drug test. The Act does limit, in certain cases, the actions an employer can take when an applicant or employee who holds a valid medical marijuana card tests positive for marijuana use. Smoke and Mirrors? The Act does not provide specific penalties for discrimination based on medical marijuana use. Courts will look at general statutes prohibiting other statutory violations. The most likely statute employees will rely on is A.R.S , which permits employees to pursue tort claims for wrongful discharge in a situation where the employer has terminated the employment relationship of an employee in violation of a statute of this state LEWIS ROCA ROTHGERBER 4

5 A Maze for Employers The Act contains language permitting employers to penalize employees including cardholders who are impaired while on the job. The Act itself does not define impairment. The Act also makes clear that a positive test alone provides no basis for disciplining an employee who is a medical marijuana cardholder unless the test shows that marijuana was present in the employee s system in a sufficient amount to show impairment. What s Impairment? Clarity Up in Smoke How does an employer know if an employee is impaired? There are no legal levels for impairment of marijuana, unlike alcohol levels, which are stipulated in the DWI laws. Marijuana use is far harder for lay people to detect than alcohol use. Urinalysis, the type of drug test most commonly used by employers, is largely ineffective in determining whether a marijuana user is impaired at the time of the test LEWIS ROCA ROTHGERBER 5

6 Adding Fuel to the Fire Considerable empirical evidence shows that the use of marijuana, whether for medical use or otherwise, may impair the user s cognitive functions and ability to perform complex tasks requiring attention and mental coordination. Employers are understandably concerned about loss of productivity as well as liability if third persons are injured by the actions of an employee working while under the influence of marijuana. Employers must still comply with OSHA and other standards governing workplace safety, especially for employees performing safety-sensitive tasks, such as operating heavy equipment, machinery, or motor vehicles as part of their job duties. Adding More Fuel to the Fire Similar to OSHA requirements, Arizona statutes require employers to furnish... employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm. A.R.S Employers who operate Commercial Motor Vehicles and/or employ individuals who are required to have a Commercial Driver s license are subject to Federal Motor Carrier Safety Administration regulations, which expressly preempt state laws. See C.F.R , Under those regulations, drivers may not report for duty or remain on duty requiring performance of safety sensitive functions if the employee has used a controlled substance (including marijuana) LEWIS ROCA ROTHGERBER 6

7 Adding More Fuel to the Fire The U.S. Department of Transportation recently reminded employers in the trucking, railroad, airline, and transit industries that state medical marijuana laws do not supersede federal requirements to test transpiration employees for drug use. That an employee s use of marijuana is for medical purposes does not excuse an employer from addressing the employee s positive test as specified in the Department s regulations. Note: permits an employer to take action if a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations. A.R.S (B) The Arizona Legislature Responds In April 2011, the Arizona Legislature amended Arizona s twenty-year old drug testing statute (A.R.S , et seq.) by defining terms and adding protections for employers. The statute details specific requirements for what must be included in an employer s written policy. Although no penalty exists for not complying with the drug testing statute, if an employer chooses to comply, the statute provides a safe harbor for employers from certain civil liability LEWIS ROCA ROTHGERBER 7

8 Safe Harbor for Employers Who Comply No cause of action is or may be established for any person against an employer who has established a policy and initiated a testing program in accordance with this article for any of the following: Actions in good faith based on the results of a positive drug test or alcohol impairment test. Actions based on the employer s good faith belief that an employee used or possessed any drug while on the employer s premises or during the hours of employment. Actions based on the employer s good faith belief that an employee had an impairment while working while on the employer s premises or during hours of employment. Actions to exclude an employee from performing a safety-sensitive positions. A.R.S (B) Good Faith Definition The law defines good faith to permit an employer to consider any of the following when deciding the existence of substance abuse or possession: (1) observed conduct, behavior or appearance; (2) 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; (3) written, electronic or verbal statements; (4) lawful video surveillance; (5) records of government agencies, law enforcement or courts; (6) results of a test for the use of alcohol or drugs; and (7) other information reasonably believed to be reliable or accurate LEWIS ROCA ROTHGERBER 8

9 Impairment Definition Impairment means : Symptoms 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, including symptoms of the employee's speech, walking, standing, physical dexterity, agility, coordination, actions, movement, demeanor, appearance, clothing, 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. A.R.S (7) Safety Sensitive Positions The law also provides that an employer is protected from litigation based on actions to exclude an employee from performing a safetysensitive position. See A.R.S (7). This may include reassigning the employee to another position or placing an employee on paid or unpaid leave. An employer may base this exclusion on the employer s good faith belief that the employee is engaged in the current use of any drug, whether legal, prescribed by a physician or otherwise, if the drug could cause an impairment or otherwise decrease or lessen the employee s job performance or ability to perform the employee s job duties. Employers may look to a number of factors in evaluating the effects a drug may have, including drug or alcohol test results, warning labels, statements by the employee, information from a physician or pharmacist, information from reputable reference sources or any other information the employer in good faith believes to be reliable LEWIS ROCA ROTHGERBER 9

10 Safety Sensitive Positions Employers have latitude in designating positions as safetysensitive. A safety-sensitive position is any job designated by an employer as such, 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. Examples include the operation of a motor vehicle, other vehicle, equipment, machinery or power tools, repairing, maintaining or monitoring certain equipment, performing duties in the residential or commercial premises of a customer, supplier or vendor, preparing or handling food or medicine, and working in any occupation regulated by Title 32 of the Arizona Revised Statutes, which includes Arizona s regulated industries, such as the medical profession. Remember: in order to take advantage of the exceptions for safetysensitive positions, your policy must comply with the statute! What Your Policy Should Include A statement of the employer's policy regarding drug and alcohol use. A description of those employees or prospective employees subject to testing. The circumstances under which testing may be required. A description of the testing methods and collection procedures. The consequences of a refusal to participate in the testing. Any adverse personnel action that may be taken based on the testing procedure or results. The right of an employee, on request, to obtain the written test results. The right of an employee, on request, to explain in a confidential setting, a positive test result. The employer's policy regarding the confidentiality of test results. See A.R.S for other requirements and restrictions LEWIS ROCA ROTHGERBER 10

11 Card Verification System Employers now have a lawful means to confirm an employee s or applicant s card status through the system established by Arizona Department of Health Services. The verification system does not permit employers to search for employees to see if they are cardholders. Rather, the system is limited to the verification of a registry card provided to the employer by either a current employee or an applicant. The verification system is available at: Clearing the Smoke? Arizona s statute may place employers in a better position when dealing with medical marijuana in the workplace, provided that employers comply with Arizona s drug testing statute. Before the Medical Marijuana Act, there was little incentive for Arizona employers to craft their substance abuse policies to comply with the drug testing statute, as the legal risks for non-compliance were low. Now, employers should adopt compliant policies to protect themselves against claims arising from Arizona s Medical Marijuana Act LEWIS ROCA ROTHGERBER 11

12 Still Hazy The Drug Testing statute does not specifically refer to the employment rights of medical marijuana users. Because is based on a voter initiative, the Arizona Legislature s ability to modify the Act through the Drug Testing statute is limited by the Arizona Constitution. Article 4, Section 1 of the Arizona Constitution provides that The legislature shall not have the power to amend an initiative measure approved by a majority of the votes cast thereon, or to amend a referendum measure decided by a majority of the votes thereon, unless the amending legislature furthers the purpose of the measure. There are no cases interpreting the interplay between the Medical Marijuana Act and Arizona s drug testing statute. Proceed with Caution Don t Be Test Case! Employers should keep in mind that under the terms of the Arizona Medical Marijuana Act, discrimination based on cardholder status in employment remains specifically prohibited. As with any employment policy, employers should ensure that all policies related to drugs, alcohol and testing are applied uniformly and in a nondiscriminatory manner LEWIS ROCA ROTHGERBER 12

13 Steps to Avoid the Weeds Update your company s policy to comply with Arizona s Drug Testing statute! Make clear that while your company will not discriminate based on cardholder status, your company will take action if an employee uses marijuana on the job, possesses marijuana in the workplace, or is working while impaired by marijuana. Consider designating certain positions as safetysensitive. Consider whether your company should use a testing method other than urinalysis. Steps to Avoid the Weeds Train supervisors and managers on how to recognize symptoms of impairment, as well as develop a process for documenting them, when possible. Consider certification impairment specialists. Verify employee s status as a cardholder at the Department of Health Services website. Consider consulting an attorney before disciplining an employee cardholder who tests positive for marijuana. Your case could be the test case! Require post-accident drug testing for employees, and include such requirements in your policy LEWIS ROCA ROTHGERBER 13

14 Time to Test You! Can an employer refuse to hire an applicant who tests positive when the employer knows that the applicant has a medical marijuana card? Answer: Generally, no. The Act prohibits an employer from refusing to hire an applicant who possesses a valid medical marijuana registry identification card simply because that person tested positive for marijuana. Maybe if the position is safety-sensitive (law is still unclear) The employer can (and should) advise any applicant that its employees are not permitted to use marijuana in the workplace or to work under the influence of marijuana LEWIS ROCA ROTHGERBER 14

15 Answer (Continued): Engage in the interactive process to elicit information as to (1) whether the person is a medical marijuana cardholder; and (2) whether the person s use of medical marijuana outside of the workplace will create an objective health and safety risk at work. The latter determination must be based on specific facts and not on fears, stereotypes or perceptions about persons who typically use marijuana. A rule of thumb is that a medical marijuana user who tests positive on a drug test should be treated the same way the employer would treat any other applicant who uses prescription medications Time to Test You! If a current employee tests positive for marijuana on a random drug test, can you automatically terminate the employee? 2014 LEWIS ROCA ROTHGERBER 15

16 Answer: Generally no. Employers may not discriminate based solely on a positive test if the employee is a cardholder. If an employee tests positive, the employer should engage in an interactive process to ensure that the person is a registered cardholder and was not (1) using or possessing marijuana, or (2) under the influence of marijuana while on the job. If the employer answers no to both questions, and the employee is a cardholder, the employer is prohibited from terminating or disciplining the employee because of the positive drug test. What about the Americans with Disabilities Act? The ADA is clear that individuals currently engaging in the illegal use of drugs are not protected by the ADA. See 42 U.S.C ; 29 C.F.R Because federal as opposed to state law does not recognize the medical use of marijuana, arguably current use of marijuana, even if permitted under state law and prescribed by a physician, would still be considered illegal drug use under federal law LEWIS ROCA ROTHGERBER 16

17 What about the Americans with Disabilities Act? The Ninth Circuit came to this conclusion in James v. City of Costa Mesa, 700 F.3d 394, 404 (9th Cir. 2012) cert. denied, 133 S. Ct. 2396, 185 L. Ed. 2d 1105 (U.S. 2013). The court held that even marijuana use under a doctor s supervision in accordance with state law was not protected under the ADA. The court reasoned that the ADA excludes illegal drug users from its definition of qualified individuals with a disability. Although generally-applicable California drug laws carve out an exception for uses of marijuana for medical purposes under doctor supervision, there are no such exceptions to the federal Controlled Substances Act. Note: this case involved access to public accommodations under the ADA; it is not an employment law case. Questions? 2014 LEWIS ROCA ROTHGERBER 17