Perhaps inspired by the plight of employees such as Joseph Casias, a Michigan Wal-Mart worker who was fired for legally using pot for medicinal purposes, Arizona’s new medical marijuana law prohibits employers from discriminating against medical marijuana cardholders.
The issue is likely to be tested in Arizona’s workplaces, according to experts. The law specifies that medical marijuana is for serious illnesses such as cancer, HIV and glaucoma, but many employees with chronic illnesses continue to work long after their diagnoses.
There is no standard for defining that someone is “under the influence” of marijuana, so deciding what it means to be “impaired” by pot on the job is difficult. Employment law, however, generally allows termination for poor work performance.
There is widespread uncertainty among Arizona employers, and in the months before Arizona’s medical marijuana program gets off the ground, many companies and their attorneys are scrambling to review and revamp their drug-testing policies and scrutinize their employee rules so that they’ll be in compliance.
|Photo: The NORML Stash Blog
|Mike Meno, MPP: “It might be fair to say that Arizona is more explicit in how it’s spelled out employee protections”
Workplace issues have arisen frequently in other medical marijuana states, according to Mike Meno, communications director for the Marijuana Policy Project
, which backed the successful November ballot initiative that legalized medicinal cannabis in Arizona.
Although 15 states allow patients to use marijuana for medicinal purposes, only a handful spell out protections for employees who legally use cannabis.
“States like Maine, Rhode Island and Michigan have employee protections in their laws, but it might be fair to say that Arizona is more explicit in how it’s spelled out employee protections,” Meno said.
Arizona officials have 120 days from November 29, when election results showing the victory of medical marijuana initiative, Proposition 203, were made official, to set up a system overseeing buyers and sellers of medicinal cannabis.
Regulations are still being drafted, but Arizona’s new law specifically prohibits employers from discriminating against workers who are legal medical marijuana cardholders. That includes people who are patients, people who work or volunteer in cannabis dispensaries, and designated caregivers who assist patients using medical marijuana.
But the anti-discrimination rule has an exception. Because marijuana is illegal for any purpose under federal law, companies with federal contracts are allowed to avoid employing medical marijuana patients so they don’t risk losing contracts or funding.
Arizona expects to have a fully functioning medical marijuana program by late summer next year.
In the meantime, companies should talk to a lawyer, review their drug-testing policies and take a close look at employee rules, according to John Lomax jr., an attorney at Phoenix law firm Greenberg Traurig LLP, specializing in workplace issues.
Companies should consider revising internal policies to include information about the state’s new medical marijuana law, Lomax said.
Since marijuana remains detectable for weeks after patients use it, companies must also be prepared to deal with workers who test positive, said John Kerkorian, a lawyer at Ballard Spahr LLP who advises employers.
And although a company may take disciplinary action if a medical marijuana patient is under the influence at work, impairment may be difficult to prove, according to Kerkorian.
Unlike with alcohol, there is no no accepted standard for marijuana intoxication, since THC metabolites can show up for weeks after a patient last used cannabis.
“That is going to be the rub,” Kerkorian said. “A positive test doesn’t mean that someone is impaired.”
Many of these issues will likely end up in Arizona’s courts, according to legal experts.