Prop 203 Informal Draft Rules

On December 17, 2010, the Arizona Department of Health Services began the first phase of the rulemaking process related to Proposition 203 by releasing its informal draft rules (“Informal Rules”) on the Medical Marijuana Program. Lewis and Roca’s attorneys provide this overview of the Informal Rules, which are proposed to be used to implement the Act. Employers and individuals may wish to use this overview to provide feedback to ADHS about the informal draft rules during the informal comment period. ADHS will be accepting informal, electronic public comment on the initial informal draft rules until Friday, January 7, 2011.

PLEASE NOTE: This Client Alert focuses only on the provisions describing the limitations on marijuana usage and the provisions describing who may be eligible to become a qualifying patient. This overview will not provide any insight on designated caregivers and dispensaries, except to say that there is coverage on both of these areas in the Act and the Informal Rules.

Medical Marijuana Program
The Informal Rules are divided into three sections. This Client Alert primarily focuses on the General section (which describes when and where marijuana can and cannot be used). The Informal Rules also address who can use medical marijuana and the procedures they have to follow in order to obtain it, as well as Dispensaries. Because neither issue will effect employers in their usual course of business, they are not addressed in detail here. Thus, we note only that qualifying patients, designated caregivers, and authorized medical marijuana dispensaries will be regulated by the state and subject to the state’s specified procedures.

The definitions section of the Informal Rules supplement the definitions that will be included in A.R.S. § 36-2801 (the Arizona Medical Marijuana Act).

A. Using Marijuana in Public
Under the Act, individuals are precluded from smoking marijuana in a “public place.” However, because the Act did not define the term “public place,” the Informal Rules address this issue. Under the Informal Rules, a “public place”:

  1. Means any location, facility, or venue that is not intended for the regular exclusive use of an individual of a specific group of individuals;
  2. Includes airports; banks; bars; child care facilities; child care group homes during hours of operation; common areas of apartment buildings, condominiums, or other multifamily housing facilities; educational facilities; entertainment facilities or venues; hotel and motel common areas; Laundromats; libraries; office buildings; parks; parking lots; public transportation facilities; reception areas; restaurants; retail food production or marketing establishments; retail service establishments; retail stores; shopping malls; sidewalks; sports facilities; theatres; warehouses; and waiting rooms.

Importantly, this extensive list does not include nursing care institutions, hospices, assisted living centers, assisted living homes, adult day health care facilities, adult foster care facilities, and private residences.

B. Using Marijuana at Work
The Act also stated that an employer cannot be said to be discriminating against an individual by disallowing that individual to use marijuana on the premises of employment or during the hours of employment. The Informal Rules provide additional guidance by defining “working day” as “the period from 8:00 a.m. to 5:00 p.m. on a Monday, Tuesday, Wednesday, Thursday, or Friday that is not a state holiday or a statewide furlough day.”

C. Augmenting the List of Debilitating Medical Conditions and Treatments
An important component of the Act is that not all individuals will be eligible to use medical marijuana. That is, only a qualifying patient with a debilitating medical condition may apply for the right to medical marijuana. Accordingly, the Act contained a list of debilitating medical conditions, but also provided that the ADHS was authorized to add medical conditions or treatments to that list. As part of this process, the public may petition ADHS to add a debilitating medical treatment or condition to the list.

At first, it may be concerning to employers that any individual could petition to add a new medical condition to the list, thereby potentially expanding the group of individuals who would be able to access medical marijuana. However, the Informal Rules require very specific, detailed information from an individual requesting the addition of a medical condition to the list of debilitating conditions, including:

  • The name of the medical condition;
  • A description of the symptoms and other physiological effects experienced by an individual suffering from the medical condition or treatment that may impair the ability of the individual to accomplish activities of daily living;
  • The availability of conventional medical treatments to provide therapeutic or palliative benefit for the medical condition or treatment;
  • Evidence that the use of marijuana will provide therapeutic or palliative benefit for the medical condition or treatment; and
  • Articles published in peer-reviewed scientific journals, reporting the results of research on the effects of marijuana on the medical condition or treatment supporting why the medical condition or treatment should be added.

Thus, individuals should not be successful in any petition for the addition of medical conditions or treatments to the list of debilitating conditions or treatments, absent evidence from the scientific community that “normal” medications could not provide the relief that marijuana would. Moreover, actually adding the requested medical condition to the list will be subject to a public notice and comment period. That is, if ADHS determines that the request has provided the evidence required, ADHS will schedule a public hearing, provide public notice of the hearing, and post a copy of the request on the ADHS website for public comment before adding the condition to the list of debilitating conditions.

Under the Informal Rules, patients who are diagnosed by their physician as having a debilitating medical condition or treatment can take that diagnosis to ADHS and apply for a registry identification card. After ADHS has approved an application, the Informal Rules outline a process for ADHS to issue registry identification cards to qualified patients (and designated caregivers, as appropriate). After ADHS issues a card, the qualifying patient or designated caregiver can obtain medical marijuana from a licensed dispensary.

The Informal Rules do not contemplate including employers in the process of obtaining a registry identification card. Patients obtain certification from physicians and submit that certification to ADHS. ADHS does not notify employers when it issues a card and it does not appear that there will be a central database of cardholders. Moreover, individual employees will not be able to obtain a card for a debilitating condition that has not been approved by ADHS.

The Informal Rules are intended to resolve many of the issues not addressed by the language of the Act. For example, under the Act, whether an individual was using marijuana in public or during work hours was seemingly left open for interpretation. The Informal Rules have more clearly enumerated types of public locations and what is meant by “working hours.”

However, the Informal Rules have not provided any additional guidance as to when an individual can be said to be under the influence of marijuana. Thus, the standard remains, as set forth in the Act, that individuals cannot use marijuana in public or at work or be under the influence of marijuana at work. Employers who want to keep the workplace safe by disciplining individuals who are found to be under the influence of marijuana at work should therefore consider how they will determine when an individual is "under the influence of" or "impaired by" marijuana at work, a question left unanswered by the Act or the Informal Rules. This continues to present a problem for employers who want to keep the workplace safe by disciplining individuals who are found to be under the influence of marijuana at work.

Whether these and any other gaps will be addressed when the official draft rules are released on January 31 will depend, at least in part, on the comments that ADHS receives during the informal public comment period ending January 7, 2011.

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