Legal marijuana presents problems for Arizona employers

While marijuana is increasingly accepted across the U.S., there are work-related issues to be hammered out. (DEA/Courtesy)

While marijuana is increasingly accepted across the U.S., there are work-related issues to be hammered out. (DEA/Courtesy)

KINGMAN - Voters passed Arizona's Medical Marijuana Act in 2010 by the slimmest of margins and presented employers in the state with this question: How would they address workers who legally consumed marijuana for health reasons?

They had cause for concern. American businesses lose an estimated $100 billion every year because of drug and alcohol abuse.

The lost revenue comes from accidents, health care costs, lost productivity and liability, according to attorney David Selden, who spoke to business leaders in Kingman on Monday during a seminar regarding medical marijuana in the workplace.

Employers cannot discriminate in the "hiring or firing of cardholders, and they can't impose any special conditions on their employment or otherwise penalize a person simply because they use medical marijuana."

However, employers can discipline employees who use or are under the influence of marijuana while at work.

Selden said writers of the Arizona Medical Marijuana Act intentionally left out any civil remedy for an employee who was allegedly the victim of employer discrimination, meaning there are no limits on monetary damages.

Selden said lawmakers were unable to change the Medical Marijuana Act because the law passed by voter referendum. They learned that the hard way when they repealed the law several years ago, only to learn they had no authority to do so.

With no way to insert employer protections into the law, legislators focused on a completely different set of Arizona Statutes: employer drug testing laws.

Employers who follow the statutory guidelines written into the state's drug and alcohol statutes - and have a written policy that complies with the law - will receive significant benefits when it comes to lawsuits, said Selden.

They will be protected against lawsuits filed by employees who were disciplined or discharged because of a positive drug test, lawsuits filed by employees who disagree with test results - unless the employer knew or should have known the result was an error - and lawsuits based on a positive drug test resulting in an employee being reassigned to a different job that isn't labeled as "safety sensitive."

Perhaps the most important change in the law for both employers and employees is the fact an employee who tests positive might not automatically be eligible for unemployment benefits.

While Selden made it clear people who use medical marijuana are permitted to do so, employers have the right to ensure their employees are not impaired.

But that's easier said than done.

While it's relatively easy to determine if a person is impaired while under the influence of alcohol, there is no test to determine whether a person is impaired by marijuana at the time any test is taken because the drug stays in the system for weeks.

For employers eager to avoid litigation, Selden said the best protection against lawsuits filed by former employees who were discharged for being under the influence of any illegal drug while at work is to establish a written drug-testing policy and testing program that is in line with Arizona laws.

From Dec. 15, 2010 - the date the Medical Marijuana Act went into effect - through last September, the Arizona Department of Health Services issued nearly 44,000 cards to qualifying patients or their caregivers.

According to Selden, 25 percent of cardholders are between 18 and 30 years of age, while nearly 22 percent of cardholders are between 50 and 60.

Seventy percent of all cardholders are male and 75 percent of them list "chronic pain" as their qualifying condition.

How many of those 44,000 cardholders also hold a job is not known.