What Should Employers Know About the Recently-Passed Arizona Law Legalizing Medical Marijuana
November 2010

This month, Arizona voters passed Proposition 203, an initiative legalizing the use of medical marijuana. This Client Alert outlines some key provisions of what will be known as the Arizona Medical Marijuana Act and highlights some implications for employers.

The Act does not authorize any or all employees to use or distribute marijuana at work. Only individuals with specific conditions, or who are participating in specific treatments, are eligible to use medical marijuana. Moreover, employers are not required to allow employees to use medical marijuana at work or during work hours, and may discipline an employee for doing so, as described in this Client Alert.

Q: Who can use medical marijuana?

A: Only a qualifying patient may use medical marijuana. A qualifying patient is a person who has been diagnosed by a physician as having a debilitating medical condition.

Q: How will I know if an employee is using medical marijuana legally?

A: To use medical marijuana, an individual must have applied for and received a registry identification card from the Arizona Department of Health and Human Services. This card identifies a person as a registered qualifying patient, registered designated caregiver, or a registered non-profit medical marijuana dispensary agent, and contains specific information including the cardholder’s name, address, and date of birth and the date of issuance and expiration of the registry identification card, among other information.

Q: Are employees allowed to use medical marijuana at work?

A: No. The Arizona Medical Marijuana Act does not authorize any individual to undertake a task under the influence of marijuana that would constitute negligence or professional malpractice, or to operate, navigate, or be in actual physical control of any motor vehicle or other mode of transportation, while under the influence of marijuana. The Act does not authorize any individual to smoke marijuana in public.

Q: Will I get in trouble if I hire someone that uses medical marijuana?

A: No. An employer may not be penalized under state law for employing a registered qualifying patient or a registered designated caregiver.

Q: I do not want to hire or employ anyone that uses medical marijuana. Do I have to?

A: Maybe. As a general matter, 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 cardholder, or a registered qualifying patient’s positive drug test for marijuana components or metabolites.

There are two exceptions. First, an employer is not required to hire or continue to employ a registered qualifying patient if it would cause him to lose a monetary or licensing-related benefit under federal law or regulations. Second, an employer is not required to hire or continue to employ a person who tests positive for marijuana components or metabolites if this person used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.

The Act does not require an employer to allow the ingestion of marijuana in the workplace or to allow any employee to work while under the influence of marijuana. Moreover, the Act does not prohibit an employer from disciplining an employee for ingesting marijuana in the workplace or for working while under the influence of marijuana.

A cautionary word: 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 an insufficient concentration to cause impairment. Therefore, companies will need to reevaluate and potentially revise their current approaches to how they conduct and interpret the presence of metabolites and components of marijuana.

Q: I do not want to operate my business in an area with too many marijuana dispensaries. How many will there be, and who is allowed to sell marijuana?

A: Only a non-profit marijuana dispensary may sell marijuana under the Act. The Arizona Department of Health and Human Services generally may not issue more than one non-profit medical marijuana dispensary registration certificate for every ten “normal” pharmacies in the state. There are currently 1,240 normal pharmacies in Arizona. This means that the Department cannot issue certificates to more than 120 marijuana dispensaries, unless it must do so to ensure that there is at least one non-profit medical marijuana dispensary in each county in which an application has been approved

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