The Arizona Medical Marijuana Act – Implications for Employers

After a close vote, Arizona voters recently passed Proposition 203, the Arizona Medical Marijuana Act, making Arizona the 15th state to pass legislation legalizing the use of marijuana for medical purposes.

Details of the Arizona Medical Marijuana Act

The Arizona Medical Marijuana Act allows a “qualifying patient” with a “debilitating medical condition” to obtain up to 2.5 ounces of marijuana in a 14-day period from a registered non-profit medical marijuana dispensary. To qualify under the Act, a person must be diagnosed by a physician as having one of the defined medical conditions listed in the Act (such as AIDS, HIV, and cancer). The Arizona Department of Health Services (DHS) is responsible for regulation of the use and distribution of medical marijuana.

The Act provides that a qualifying patient must register with the DHS by submitting a written certification from his or her physician. The certification must specify the debilitating medical condition. The Act details additional regulations for patients under 18 years of age, including submission by the patient’s parent or legal guardian of certification by two physicians.

The medical marijuana dispensaries must operate as non-profit organizations, but may receive payment for expenses incurred in their operation. The Act limits the number of dispensary registration certificates available to one for every ten pharmacy permits issued by the Arizona State Board of Pharmacy. If a qualifying patient’s home is located more that 25 miles from a dispensary, the patient may cultivate up to 12 marijuana plants in an enclosed, locked facility.

The Effect of the Act on Employers

The Act specifically provides that employers may not discriminate in hiring, termination, terms of employment, or in any other way penalize an individual based on his or her status as a registered person, unless doing so would cause an employer to lose a monetary or licensing benefit under federal law. Additionally, employers may not penalize a registered, qualifying patient for a positive drug test for marijuana, unless the individual used, possessed, or was impaired by marijuana on the employment premises or during employment hours.

While employers are, in most circumstances, not allowed to discriminate against individuals for being registered to obtain and use marijuana for medical purposes, the Act does not require employers to allow employees to use marijuana at the workplace. Employers also may prohibit employees from performing work under the influence of marijuana. However, “under the influence” does not include registered qualifying patients who have a presence of the metabolites or components of marijuana that appears insufficient to cause impairment.

What Should Employers Do to Prepare?

The projected timeline for implementation of the DHS regulations indicates that draft rules will be available on December 17, 2010, and the rules will be finalized by March 28, 2011. Employers should review their current policies and consider adding language specifically addressing medical marijuana. Such policies should expressly prohibit the use of marijuana at work without regard to whether the use is consistent with the Arizona Medical Marijuana Act. Employers also should specify that no employee may be under the influence of any controlled substance, including marijuana, which may interfere with the employee’s duties or pose a danger to the employee or others.