Prop 203 Passes by Thread

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1 The Arizona Medical Marijuana Act: The Implications for Employers SCCE s Regional Compliance & Ethics Conference Jeffrey Toppel Jackson Lewis P.C., Phoenix 2398 E. Camelback Road Suite 1060 Phoenix, Arizona (602) toppelj@jacksonlewis.com Prop 203 Passes by Thread It took over a week after the November 2011 election for the Yes on Prop 203 vote to overcome the No vote but it ultimately did in a barnburner. YES = 841,348 NO = 837,008 MARGIN = 4,340

2 State Law vs. Federal Law Lets Not Forget: Marijuana is Still Illegal under Federal Law Raich v. Gonzales: In 2005, the U.S. Supreme confirmed that marijuana is still illegal drug under federal law, and that federal law trumps state medical marijuana laws. Federal Law Controlled Substance Act: Under the Act, marijuana is a Schedule 1 illegal drug that may not be used, possessed, manufactured or distributed, even for medical purposes. Schedule 1 drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. 21 U.S.C. 812(b)(1). In 2011, the federal Drug Enforcement rejected a petition to reschedule Schedules III, IV or IV. A federal appeals upheld this decision in January 2013.

3 Decreased Federal Enforcement Attorney General Eric Holder announced formal guidelines for federal prosecutors in states that have enacted laws authorizing the use of marijuana for medical purposes: The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department s efforts against narcotics and dangerous drugs, and the Department s investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. 5 Arizona: Not Exactly a Pioneer Since California passed Prop 215 in 1996, 23 states and DC have passed medical marijuana legislation: Arizona Alaska California Colorado Connecticut Delaware District of Columbia Hawaii Illinois Guam Maryland Maine Michigan New Mexico Oregon Rhode Island Vermont Washington Montana New Jersey Nevada Washington Massachusetts New York New Hampshire

4 Turning A New Leaf: Recreational Marijuana Laws Colorado: In Nov. 2014, CO Amendment 64 was approved permitting the use of marijuana by adults over the age 21. Washington: In Nov. 2014, Initiative 502 was passed allowing the state to distribute marijuana for 21 years and older. Oregon: In Nov. 2014, voters approved a statute legalizing marijuana use and create a network of retail marijuana stores. Alaska: Passed a law in Nov legalizing recreational marijuana and establishing a network of retail marijuana stores. Arizona Medical Marijuana Cards By the Numbers Since the AZ Dept. of Health and Human Services started issuing cards to qualifying patients in April 2011*: 63,417 active cardholders 61,272 qualify patients (including minors) 639 designated cardholders 1,506 dispensary agents 70% of the cardholders are male 80% of cardholders are within ages of *Statistics are from the Arizona Department of Health Services 2014 AMMA Year End Report.

5 AMMA By the Numbers The AMMA specifically defines debilitation medical condition to include a number of specific medical conditions, as well as a chronic or debilitating disease or medical condition that produces one of a number of symptoms, including severe and chronic pain. Over 70% of the cards issued have been for severe and chronic pain. 20% of the cards have been issued to cardholders who have multiple conditions. Starting Jan. 1, 2015, Post Traumatic Stress Disorder (PTSD) was added to the list of qualifying conditions. The Haves and Have Nots Of the several states (and DC) that have enacted medical marijuana legislation, several states have included some form of workplace protections for medical marijuana users, or interpreted their statute to include such protections, while several other states including California have not included any workplace protections. Arizona s protections are among the most comprehensive in the country.

6 Guidance from Other States CALIFORNIA Ross v. Ragingwire Telecommunications, Inc., 174 P.3d 200 (Ca. 2008): Plaintiff required to take drug test as part of a promotion. Plaintiff fails test and subsequently fired. Court ruled for employer, finding that there was no policy in law requiring employers to accommodate medical marijuana uses. 11 Guidance from Other States OREGON Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries Oregon's Supreme Court ruled that Oregon law does not require employers to accommodate the use of illegal drugs, including medical marijuana. The Court concluded that while the state may lawfully "exempt" medical marijuana users from state criminal liability, it may not "authorize" conduct that directly conflicts with federal law. WASHINGTON Roe v. Teletech Customer Care Management Court ruled that Washington s Medical Use of Marijuana Act does not protect medical marijuana users from adverse hiring or disciplinary decisions based on an employer s drug test policy.

7 Dispensaries The number of dispensaries is based on the number of pharmacies in AZ. There cannot be more than 1 dispensary for every 10registered pharmacies. After much litigation, dispensaries started opening in December A dispensary may cultivate marijuana at the dispensary or at a cultivation site, but the location of the dispensary and the cultivation site needs to be in compliance with local zoning restrictions. A qualifying patient or the qualifying patient's designated caregiver may cultivate medical marijuana if the qualifying patient lives more than 25 miles from the nearest dispensary. The AMMA s Workplace Provisions Non Discrimination Provision A.R.S B. Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either: 1. The person s status as a cardholder. 2. A registered qualifying patient s positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.

8 The Proposition s Workplace Provisions Employer Rights Provision A.R.S A. Nothing in this chapter requires: *** 3. An employer to allow the ingestion of marijuana in any workplace or any employee to work while under the influence of marijuana, except that a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components that appear in insufficient concentration to cause impairment. B. Nothing in this chapter prohibits an employer from disciplining an employee for ingesting marijuana in the workplace or working while under the influence of marijuana. HB 2541: A Step in the Right Direction On April 29, 2011, Gov. Brewer signed into law HB 2541, which amends Arizona s existing drug testing status and adds important protections to employers. Arizona s Drug Testing Statute, A.R.S , et seq.: Provides a safe harbor to employers from certain civil liability arising out of drug testing if the employer has a written policy that complies with the statute s very specific requirements.

9 HB 2541: Important Protections for Employers Key Protection: No cause of action may be established against an employer that is based on the employer s good faith belief that the employer either used or possessed any drug, or had an impairment while working, while on the employer s premise or during the hours of employment. HB 2541: Good Faith Belief Good Faith Belief: An employer may consider all of the following when determining the existence of drug abuse or possession: (1) Observed conduct, behavior or appearance; (2) Info reported by a person believed to be reliable; (3) Written, electronic or verbal statements; (4) Lawful surveillance; (5) Records of government agencies, law enforcement, etc.; (6) Results of a test for use of alcohol or drugs; and (7) Other info reasonably believed to be reliable or accurate.

10 HB 2541: Impairment The amended statute lists numerous symptoms indicating that a prospective employee or employee while working may be under the influence of drugs or alcohol that may decrease or lessen the employee s performance of the duties or tasks of the employee s job position. These symptoms, include: Walking, standing, physical dexterity, agility, coordination, actions, movement, demeanor, appearance, clothing, and odor; Negligence or carelessness in operating equip., machinery, or production or manufacturing process; Disregard for the safety of others or involvement in accident; Any injury to the employee or others or other symptoms causing reasonable suspicion of the use of drugs or alcohol. HB 2541: Safety Sensitive Position Definition: Any job designated by an employer or any job that includes tasks or duties that the employer in good faith believes could affect the safety or health of the employee performing the task or others. Protection: Protects an employer that excludes an employee from performing a safety sensitive position by among other things reassigning the employee to another position or placing an employee on paid or unpaid leave. Employer may look to several of factors evaluating the effects a drug may have on the employee s abilities Current Use of Any Drugs is defined as use that has occurred recently enough to justify an employer s reasonable belief that involvement with the drug is ongoing.

11 The Americans with Disabilities Act The Federal Controlled Substances Act state that marijuana is illegal and has no accepted medical use. Accordingly, use of medical marijuana cannot be considered a reasonable accommodation. The ADA expressly excepts illegal drug use from coverage, so employers do not need to accommodate illegal drug use. You still need to consider whether the underlying condition i.e. the condition that qualified the employee for medical marijuana entitles the employee to the protections of the ADA. Quick Tips for Compliance with the Medical Marijuana Act Review your drug testing policy for compliance with Arizona s newly amended drug testing law. Familiarize managers with the Act s definitions of impairment and train them to recognize signs of impairment or drug abuse and how to address these situations. Review your company s positions to determine whether any may be classified as a safety sensitive position.

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