The legalization of marijuana is sweeping the country. Currently, 33 states and Washington D.C. have legalized medical marijuana, and 10 states plus Washington D.C. have legalized recreational marijuana.[1] Among the states that have legalized medical marijuana is Arizona, which passed Arizona’s Medical Marijuana Act (“AMMA”) in 2010.[2] What are Arizona employers’ rights regarding employees who use marijuana medically?

  1. Arizona law protects employees and candidates who have medical marijuana cards

Arizona is one of 14 states prohibiting employers from discriminating against an applicant or employee that uses marijuana for medical reasons.[3] This means that employers cannot refuse to hire, take an adverse employment action against, or terminate an employee based on their registered medial marijuana card.

There are exceptions to this general rule. The following describe instances where an employer may terminate, discipline, or refuse to hire an employee for their medical marijuana use:

  • If the employer would “lose a monetary or licensing related benefit under federal law or regulations” by employing an individual who uses marijuana medically;[4]
  • If the job is “safety sensitive”, i.e. operating heavy machinery, or requires the operation of vehicles;
  • If the employee is impaired by marijuana while on the job (even if they are a registered card holder);[5]
  • If the employee brings marijuana to the workplace or has marijuana in his or her possession during work hours.

This is problematic for employers that have “zero tolerance” drug policies. These policies make it clear that if an employee is found to have trace amounts of marijuana in their system, they will be terminated immediately. This directly conflicts with the AMMA and is likely unenforceable.

  1. Employers may have to accommodate an employee who uses medical marijuana

To complicate things, federal and state law may require employers to provide reasonable accommodations to employees who have disabilities. The Americans with Disabilities Act (ADA), The Families Medical Leave Act (“FMLA”) and Arizona’s Drug Testing of Employees Act that employers may be required to offer reasonable accommodations for employees with disabilities if they cannot perform a job due to their disability. The recent trend, particularly in Arizona, is to consider the need for medical marijuana as a disability requiring accommodations.

To further complicate things, A.R.S. § 23-493.06, which was passed after the AMMA, prohibits employees from suing an employer who excludes the “employee from performing a safety-sensitive position” if the employer has a good-faith belief that the employee is currently using drugs, whether legally prescribed or not.

If an employee uses marijuana medically and cannot perform a certain job due to their underlying illness that the marijuana treats, the employer should accommodate that employee. However, if the essential functions of the job are safety-sensitive, the employer may remove the employee from that position, but best practice would be to try to find an accommodation that is not safety-sensitive.

  1. Employers can still require drug tests, but should be careful in doing so.

Employers may still implement drug tests, but they cannot terminate or discipline an employee or refuse to hire a candidate for testing positive for marijuana components or metabolites.[6] Note that the same exception applies when the employer would lose a monetary or licensing related benefit under federal law or regulations by employing someone who tests positive for marijuana and is a registered card holder.

  1. The interplay of federal and state law.

One question I get a lot is: how can a drug be illegal under federal law and legal under state law? The answer is somewhat complicated.

Under the federal Controlled Substances Act (“CSA”), marijuana is illegal. Moreover, it is considered a schedule 1 drug, which means it is not considered acceptable for medical use.[7] Under the CSA, employers are not required to accommodate an employee’s registered use of medical marijuana.[8]

What should Arizona residents make of the conflicting AMMA and CSA? The short answer is that Arizona’s AMMA, which legalizes medical marijuana, unofficially governs, but employers should be very careful with the current administration. The Department of Justice’s prior administration under Obama stated it will not pursue prosecution of marijuana in states where it is legal. In other words, the Justice Department was willing to look the other way so long as states are properly regulating marijuana.[9]

The new administration and Jeff Sessions, however, are taking a different stance. On January 4, 2019, Sessions announced that federal prosecutors will pursue the use of marijuana even in states where it is legal.[10]

There is not a clear answer on how employers should handle these conflicting laws. It is more likely that they could find themselves in legal hot water under the AMMA, but they should seek legal advice if they are unsure of how to navigate this issue.

  1. The Takeaway

Employers in Arizona cannot discriminate against an employee for registered medical marijuana use. That being said, all Arizona citizens must be aware that use of medical marijuana is illegal under federal law and could be prosecuted for such use.

If you own a business and have questions about medical marijuana and the workplace, contact attorney Emma Chalverus. https://www.davismiles.com/attorney/emma-j-chalverus/

[1] https://medicalmarijuana.procon.org/view.resource.php?resourceID=000881

[2] See Arizona’s Medical Marijuana Act, A.R.S. §§ 36-2801 et seq.

[3] See Arizona’s Medical Marijuana Act, A.R.S. § 36-2813 et seq.

[4] A.R.S. § 36-2813 (B)

[5] Regarding marijuana impairment, the law says “that a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.”[5] So, the employee or applicant must have more than trace amounts of marijuana in their system during work for the employer to take an adverse employment action against them.

[6] A.R.S. § 36-2813 (B)(2)

[7] https://www.dea.gov/drug-scheduling

[8] 21 U.S.C.A. §§ 801 et seq.

[9] The Justice Department’s position on this issue is outlined in two memoranda, one published in 2009 by Deputy Attorney General David Ogden which addresses states’ legalization of medical marijuana, https://www.justice.gov/archives/opa/blog/memorandum-selected-united-state-attorneys-investigations-and-prosecutions-states,  and one published in 2013 by Deputy Attorney General James Cole addressing states’ legalization of recreational marijuana. https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf

[10] https://www.washingtonpost.com/world/national-security/sessions-is-rescinding-obama-era-directive-for-feds-to-back-off-marijuana-enforcement-in-states-with-legal-pot/2018/01/04/b1a42746-f157-11e7-b3bf-ab90a706e175_story.html?noredirect=on&utm_term=.a71f77b826df

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