Headaches. Stress. Anxiety. Employers likely experienced all or some of these when Proposition 203 — the Arizona Medical Marijuana Act (“AMMA”) — passed by the narrowest of margins (50.13% of the vote) in 2010. While headaches, stress and anxiety are not “qualifying conditions” under AMMA, complying with this new law could be considered a “chronic pain” for business owners.
As the number of issued Arizona medical marijuana cards nears 65,000 and dispensaries pop up like Starbucks every few blocks, it is imperative that employers act quickly to ensure that all employment policies and practices comply with the AMMA. This is true not only to preempt or defend against lawsuits or administrative charges filed by card-holding employees, but to address other legal concerns such as third-party lawsuits for negligent retention of an impaired employee and vicarious liability suits by customers injured by marijuana-impaired employees.
The AMMA prevents Arizona employers from discharging or discriminating against card-holding employees solely because they (1) test positive for marijuana; or (2) possess a medical marijuana card. Any drug policy or practice that allows an employer to discharge a card-holding employee solely due to testing positive for marijuana likely violates AMMA and could lead to employees filing suit for wrongful termination under Arizona Revised Statute § 23-1501, et seq.—the Employment Protection Act.
The AMMA does not, however, give any card-holding employee the right to use, possess, or “be impaired” by marijuana on work premises or during the hours of employment. While use and/or possession of marijuana on company premises may be relatively simple to detect, “impairment” is an undefined concept under the AMMA. There is no standardized level of impairment for marijuana use (such as 0.08 blood alcohol content for alcohol impairment) since different amounts, types, and potencies of marijuana may affect users in very different ways. There exist certain factors, which, while perhaps inconclusive on their own, may be considered in the aggregate to establish a viable argument for impairment, such as: unusual behaviors, lack of physical dexterity/coordination, odor, negligence or carelessness in operating machinery or equipment, involvement in an accident resulting in injury or damage, or other symptoms that indicate a decrease in work performance. Including these factors in a written drug policy and/or employee handbook may bolster a good faith defense to any charge or allegation of discrimination. Training supervisors to detect these physiological changes or differences may also help an employer against future claims.
Employers are not without protections. The AMMA allows employers to designate certain positions as “Safety Sensitive” and refuse to hire card-holding applicants for those positions. Safety Sensitive positions are those that employers, in good faith, believe could affect the safety or health of the card-holding employee and/or others. Some examples may include positions that involve: handling food, operating machinery, driving, repairing or monitoring performance of equipment, handling or dispensing medicine, and/or other similarly dangerous or risky tasks. Employers should revise employee handbooks, drug policies, and job descriptions to reflect the Safety Sensitive nature of certain positions within their business.
The elephant in this hazy, smoke-filled room is that marijuana remains illegal under federal law as a Schedule I drug—which the Drug Enforcement Agency refers to as “the most dangerous drugs” with “no currently accepted medical use.” In fact, the Colorado Supreme Court issued a decision on June 15, 2015 in Coats v. Dish Network, LLC whereby it found that Dish Network's decision to discharge a quadriplegic man—who used marijuana at home to control muscle spasms and seizures—did not violate Colorado's Lawful Activities Statute, which prohibits employers from firing employees for engaging in lawful activities off of work premises and on their own time. The Colorado Court reasoned that the term “lawful” must be construed to encompass activities that are permitted by both state and federal law. Notably, the Colorado Court did not decide whether off-duty marijuana use is protected under Colorado's Medical Marijuana Amendment, which arguably only creates an exemption from state criminal prosecution.
Arizona's Employment Protection Act has some similarities with Colorado's Lawful Activities Statute. Because the interaction of federal and state regulations is unclear, Arizona employers should consult with qualified legal professionals with familiarity in the burgeoning area of medical marijuana to draft and revise employment policies, conduct risk assessments, and train staff to comply with the AMMA to prevent detrimental legal issues from arising, especially if you do not want a lawsuit to “harsh your [business] mellow.”
Farhang & Medcoff, PLLC has extensive experience in labor and employment matters, including special expertise in defending employers against allegations of wrongful termination in violation of the Arizona Medical Marijuana Act and drafting employer handbooks and policies that comply with the Arizona Medical Marijuana Act. If you have any legal needs related to your business, please contact Farhang & Medcoff—we are ready to protect your interests.