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) ready?
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.
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How is Medical Use Defined? 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 authority.”
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 characteristics 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.
Because qualifying 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.