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Employers Worry

About MMJ Workers

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Arizona Department of Health Services Director Will Humble talks to supports of medical marijuana.
Arizona Business Owners Explore The Liability Of Workers Who Are Potentially In Violation Of Federal Narcotics Laws And Under The Influence Of Medicinal Cannabinoids

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Chris G. Braswell
Modern Times Magazine

Feb. 20, 2014 — Several U.S. states have decriminalized medicinal cannabinoids, but Arizona is one of the only states that included a clause for employers in its statute.

Under most circumstances, employers cannot discriminate against medical marijuana holders by virtue of their card holder status. The Arizona Department of Health Services began accepting applications for medical marijuana registration cards in April 2011, and people with valid medical cards are entitled to immediate protection under the Arizona Medical Marijuana Act.

Employers may not discriminate against a person in hiring, termination, or other terms or conditions of employment based on the person’s status as a card holder; or based on a card holder’s positive drug test for marijuana unless the patient used, possessed or was impaired by marijuana at work or during working hours (with exceptions related to loss of federal funds, contracted labor, and certain high-demand or security-sensitive positions).

The act does not require employers to allow the use of medical marijuana at work or to allow any employee to work while under the influence of cannabis. The act does not limit an employer’s ability to test an employee or applicant for possible impairment or for the use of illegal drugs. The act does limit, in certain cases, the actions an employer can take when an applicant or employee who holds a valid medical marijuana card tests positive for marijuana use.

The act permits an employer to “penalize” medical marijuana card holders and other employees for operating, navigating, or being in physical control of a motor vehicle, aircraft, or motorboat while under the influence of (i.e., while impaired by) marijuana.

“It’s a different realm if you’re hiring for a safety sensitive position, but if it’s not, you probably shouldn’t ask,” said Charitie L. Hartsig, of Ryley, Carlock & Applewhite, at a lunchtime presentation at the law firm’s office on Thursday, downtown.

For vocations such as aviators, emergency communicators, truck drivers, heavy machine operators, federal statute prevails (ADOT testing for example).

“Federal law always trumps state law,” she said.

Also, for employers who are constituent to Medicaid/Medicare funding programs, there is an exception under the state’s MMJ act that would affect their ability to receive federal money.

The effects of cannabis are different than those of alcohol or other depressants, and less straightforward. The statute says “impaired” by marijuana and it is very difficult to tell if someone is impaired. There are no “legal” levels for impairment of marijuana, unlike for example alcohol levels, which are stipulated in the DWI laws, “so it’s still not completely clear,” she said. “There is not a bright-line test to tell whether someone is under the influence. So a lot of employers have just stopped testing for medical marijuana and marijuana in general. A lot of people are no longer testing for marijuana because they don’t want to know.”

Subsequent to the implementation of the AMMA, HB 2541 was passed in May 2011 to clarify the act’s intent to immunize an employer from taking disciplinary actions against an employee based on the employer’s good faith belief that the employee used or possessed marijuana on the employer’s premises or during working hours. HB 2541 identified a number of “symptoms” of drug impairment that presumably would justify requiring the employee to submit to a “reasonable suspicion” drug test. Neither the AMMA nor HB 2541, nor any other generally accepted external source establishes a test standard to suggest or determine whether or not the tested individuals are or were impaired by marijuana.

Mechanisms for the determination of impairment include reasonable suspicion, observed conduct, behavior or influence; information provided by a witness or other reliable person; written, electronic or verbal statements; lawful video surveillance; and drug testing. Blurred vision and a wobbly walk are thought to be symptoms of the effects of cannabis.

HB 2541 defined cannabis impairment factors to include speech; walking, standing, movement or physical dexterity; appearance; odor; irrational or unusual behavior; negligence in operation of equipment or machinery; disregard of workplace safety; involvement in a workplace accident causing damage to equipment, property or other employees; or any other conduct that arouses reasonable suspicion of drug or alcohol use.

Employers can have a zero tolerance for alcohol in the workplace, but testing and analysis protocols must be in place for medical marijuana as it is for prescription drug use, Hartsig said.

The AMMA does not prevent an employer from disciplining an employee or refusing to hire an applicant for refusing to submit to a drug test. The act does prohibit employers from testing employees or applicants solely because they are registered medical marijuana card holders (e.g., from testing card holders in circumstances under which other similarly situated employees or applicants who are not card holders would not be tested). The act prohibits an employer from refusing to hire an applicant who possesses a valid medical marijuana registry identification card simply because that person tested positive for marijuana. The employer can advise any applicant that its employees are not permitted to use marijuana in the workplace or to work under the influence of marijuana.

“The hole in the statute is they don’t say you can penalize someone for possessing it at work,” Hartsig said. “But they cannot be under the influence and cannot use at work. If you find out if someone possesses, be aware you may not be able to penalize them for that.”

Hartsig said she keeps this loophole near to mind when authoring policy for clients.

An employer can terminate or discipline a medical marijuana card holder who uses marijuana at work even in the absence of a positive drug test. The act does not address when an employer can or should test an employee for possible drug impairment.

“You should all have drug policies and you should have a policy for medical marijuana that is narrowly tailored,” Hartsig said.

The lawsuits that could potentially be the most expensive for employers and with the clearest exposure to legal liability are claims related to the U.S. Fair Labor Standards Act, she said. A benchmark employment case brought by a medicinal cannabis card holder would very likely contain multiple accusations including employer retaliation, violation of the Americans With Disabilities Act, and violation of the Arizona Medical Marijuana Act, Hartsig predicted.

“It takes a while for these things to make their way through the courts system,” she said.

In general, a high percentage of lawsuits brought against ex-employers are warrantless, nevertheless, Hartsig cautioned about not hiring employees based solely on the fact that they possess a medicinal marijuana card, because an argument of discrimination could be made.

Legislative Update

House Bill 2474, known as the “felony sentencing bill,” which would make less than two pounds of cannabis a petty offense, with a fine of $100 for possession of an ounce or less, seems to be stalled in the Arizona Judicial House Committee Weisser, said Mojave County activist Mikel Weisser. However, Safer Arizona, ASU Students for a Sensible Drug Policy, and the national NORML office have organized a pressure campaign to get the bill back on track. Weisser is an organizer with the cannabis anti-prohibitionist group Safer Arizona.
(http://www.azleg.gov/legtext/51leg/2r/bills/hb2474p.pdf)

House Bill 2558, which Weisser called the “full regulatory bill,” has not been assigned to committee by the Arizona Speaker of the House, and Weisser said it has been “pigeonholed.” (http://www.azleg.gov/legtext/51leg/2r/bills/hb2558p.pdf)

Senate Bill 1122 purports to correct the conflated definitions of industrial hemp from medicinal cannabinoids that exists in the current statute, which is a good thing, Weisser said. However, the language of the SB 1122 also reaffirmed that edible medicinal cannabinoids in such forms as resins and concentrates are against the law, he said. SB 1122 was subsequently withdrawn, but has been reintroduced as a “striker” bill, he said, meaning that the content of the legislation was removed and replaced with different language. (http://www.azleg.gov/legtext/51leg/2r/proposed/s.11221132.pdf)

Chris G. Braswell is the managing editor of Modern Times Magazine. He can be reached at cgbraswell@moderntimesmagazine.com.

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