The latest statistics from the Arizona Department of Health show that, as of May 1, 2016 (latest numbers), 99,938 Arizonans have medical marijuana cards. Cardholders range in age from under 18 to over 80 years old. However, the majority of cardholders are working in business today. Chances are that many employees have cards. What rights does an employer have when a cardholder tests positive for marijuana in the workplace?
Arizona law is very clear on this point. Except in very specific circumstances, an employer may not terminate or discriminate against an employee because that person has a Medical Marijuana card. In fact, without evidence of impairment, employers may not terminate an employee for testing positive for marijuana except in limited situations.
Medical marijuana cards are issued if an individual has an illness or condition listed in the law: cancer, AIDS, HIV, glaucoma, Hepatitis C, ALS, Crohn’s Disease, or a “chronic or debilitating medical condition…” Chronic pain is the number one reason listed by cardholders (79,030 or approximately 81%).
Furthermore, an employer may not ask job applicants if they have a card, as that is like asking them if they have a serious medical condition, which is clearly illegal to ask under the Americans with Disabilities Act.
The law does give an employer certain protections if they act in good faith. First, if the employer would lose a federal monetary benefit (i.e. federal contract, federal grant money, etc.), the employee’s medical marijuana protections do not apply. Second, an employee may not smoke, ingest or possess marijuana in the workplace or that of a client or customer. And finally, a cardholder may not be impaired while working.
The big problem for employers is determining whether or not the employee is impaired. It is common knowledge that .08 is the standard for legal intoxication with alcohol. There is no similar standard for marijuana.
The law helps employers with identifying subjective factors. So if the employer can in good faith observe and document one or more of the following factors, it can conclude the person is impaired:
- Speech
- Walking
- Standing
- Physical dexterity
- Agility
- Coordination
- Demeanor
- Irrational or unusual behavior
Further, the employer may take into account: appearance; clothing; odor; negligently operating machinery or equipment; involvement in a serious accident resulting in serious damage or injury; any symptoms or actions by an employee that causes reasonable suspicion of the use of drugs or alcohol. (ARS §23-493.)
Another extremely successful strategy is to designate certain jobs as safety sensitive. Safety sensitive positions include those employees whose jobs entail the handling of food or medicine; operating motor vehicles, equipment or machinery; repairing or monitoring machinery or equipment; performing service in the premises of a residential or commercial customer. Therefore, if an employer wants to eliminate the card protection, they must revise the job descriptions as safety sensitive. Generally, clerical staff persons are not in safety sensitive jobs. It is important that employers do not over designate positions as safety sensitive when they are not. It is advised to follow the four requirements described above.
The law protects an employer if it: acts in good faith pursuant to a legal drug test, even if they fail to test for a specific drug; have a good-faith belief the employee used or possessed drugs on work premises; and have a good-faith belief the employee was impaired during work or on the premises.
Many attorneys would advise that the employer should have at least two managers confirm the fact that the employee is impaired, and have each clearly document what they saw, heard, smelled, etc. It is important to clearly document these factors.
Over the next few years it is expected there will be much more litigation in this area. Therefore, it is important to follow the law and have a medical marijuana policy in the employee handbook or procedures, and to document everything.
