Medical Marijuana in Arizona:
Drug Testing and Employer Obligations
Arizona’s new medical marijuana
regulations go into effect April 13; are you (and your drug-testing policies)
In the November 2010
general election, Arizona voters approved the Arizona Medical Marijuana Act
(A.R.S. 36 §§ 2801-2819), which permits and regulates the dispensing and use of
marijuana to treat or alleviate the symptoms of certain medical conditions.
Pursuant to the enactment
of that law, the Arizona Department of Health Services (DHS) has issued specific
regulations contained in its
Medical Marijuana Program. The regulations have
significant employment-related impacts (particularly in the area of
drug testing, discussed below), and every Arizona employer should be
aware of the following.
How is Medical Use
A.R.S. 36-2801(9) defines the medical
use of marijuana as “the acquisition, possession, cultivation, manufacture, use,
administration, delivery, transfer, or transportation of marijuana to treat or
alleviate a registered, qualifying patient’s debilitating medial condition of
symptoms associated with the patient’s debilitating medical condition.”
For What Medical
Conditions May Medical Marijuana Be Prescribed?
A.R.S. 36-2801(3) defines a “debilitating medical condition” to include the
following: cancer, glaucoma, HIV, AIDS, hepatitis C, ALS, Crohn’s disease, or
agitation of Alzheimer’s disease, and any other medical condition or its
treatment approved by the Department of Health Services pursuant to statutory
For What Symptoms May
a Person Legally Use Medical Marijuana? Medical marijuana may
be prescribed to treat the following symptoms: cachexia or wasting syndrome;
severe and chronic pain; severe nausea; seizures, including those characteristic
of epilepsy; or severe and persistent muscle spasms, including those
characteristic of multiple sclerosis.
Who Can Prescribe
Medical Marijuana? Medical marijuana may be prescribed by a medical doctor, a
doctor of osteopathy, a naturopathic physician or a homeopathic physician.
How Much Medical
Marijuana May a Person Possess? The patient may obtain, only from a registered dispensary, no more than 2.5
ounces in a 14-day period.
persons are now permitted to use marijuana, employers may no longer use a drug
test that is positive for marijuana as the basis for termination, disciplinary
action, hiring or any decisions impacting a term or condition of employment.
There are two major
exceptions to this general rule. An employer may take an employment action
against an employee who tests positive for marijuana use if (a) the employee is
impaired or (b) the employer would lose a monetary or licensing benefit if the
employee was not terminated or disciplined.
Impairment vs. Use. One
of the major difficulties that will arise for employers is that, while they may
take employment action against an employee for being impaired as a result of
marijuana use while at work, employers may not take employment action against an
employee simply because the employee has marijuana in his or her system. In
other words, in order to terminate an employee who tests positive for marijuana,
the employer must subject the employee to a much more expensive drug test that
actually tests the level of marijuana in one’s system, rather than a test that
merely confirms the existence of the drug in one’s system.
Drug Testing Policies. Employers must immediately implement a drug testing policy that specifically
addresses medical marijuana. The new policy should (a) comply with Arizona’s
drug testing policy, (b) prohibit use and possession of marijuana at the
workplace and (c) prohibit impairment at work.
Sacks Tierney can assist
in drafting the policy that will best protect your company from liability for
improper drug testing and for other actions that could violate the Arizona
Medical Marijuana Act or the DHS Medical Marijuana Program.