KINGMAN - Arizona's medical marijuana law doesn't take effect for another two months, but local businesses should start preparing for it now. That was the lesson several dozen human resources generalists and business owners from around the area took away from a talk hosted by employment law specialist Michael Lehet with the Littler Mendelson law firm in Phoenix.
Lehet said the Arizona Medical Marijuana Act, which was approved by voters by a slim margin last November, effectively makes it against the law for most employers to terminate or refuse to hire someone based purely on their cardholder status or for testing positive for marijuana.
There are some exceptions to that rule, however, including any employer who would lose a monetary or licensing-related benefit under federal law as the result of breaching the Federal Drug-Free Workplace Act. Such employers, Lehet said, would include federal contractors and subcontractors, businesses who employ drivers required to have commercial licenses, and businesses that are part of a federally regulated industry such as air travel or nuclear power production. He added that, even if a local business believes they may fall under one of those exceptions, they should first consult with their own legal counsel before making any decisions.
Lehet said that most businesses that do hire medical marijuana patients should not generally worry about their company coming under fire for running afoul of the federal Controlled Substances Act, since the Department of Justice has effectively acknowledged that it will not pursue any individuals who "are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana," according to an October 2009 memo.
"Because of exceptions, and exceptions to exceptions, this law is perfectly fine," Lehet said. "There isn't an issue here."
On the state level, however, Lehet said companies are likely to begin seeing legal issues arise from the law as early as this summer, which is when he said cards are likely to begin being issued to qualified medical marijuana patients, their caretakers and dispensary operators. For that reason, he said, employers should begin establishing clear policies reflecting the new law's protections, as well as laying out proper procedures for disciplining employees who do allow themselves to be under the influence of marijuana at work.
For example, he said, companies should look at updating their anti-discrimination policies to include protections based on cardholder status, as well as remove any language that states the business will not hire or will automatically terminate anyone who tests positive for marijuana. Likewise, they should maintain any existing policies they have prohibiting impairment or marijuana use on the premises during work hours.
Where businesses should be concerned, Lehet said, is in what they should do when they suspect an employee has been coming into work impaired or has been using medical marijuana on the job. While businesses are within their rights to discipline or even terminate such employees, he noted that the AMMA does not provide any language defining what the terms "impaired" and "under the influence" actually mean, nor is there any generally accepted standard for measuring marijuana impairment as there is for alcohol.
For that reason, Lehet said, businesses have to be very methodical about gathering documentation of any signs and symptoms of marijuana abuse they see in an employee, and make sure that both managers and regular employees know what to look for and are willing to report and document it as well.
"The best practice approach is, first and foremost, to train your employees and management on this law and have a requirement that if someone observe someone who appears to be impaired on the job or under the influence that they must report," he said. "Then it's a matter of the employer taking investigative steps because if you can corroborate symptoms - bloodshot eyes, impaired cognition, things like that - I think you do have a good faith basis.
"It's going to be hard to prove whether someone's impaired, but it's also going to be hard to prove they weren't impaired," he added. "If you're able to document or have some sort of eyewitness who can say, 'This is what the person looked like, this is what they were doing,' in good faith and based upon what you're seeing ... I think at that point you've done everything you can do and would be able to go ahead and counsel that employee."
Lehet said he also believed that, as the law goes into effect and confusion begins to arise over the definition of impairment, it is likely that the state Department of Health Services will begin to offer some clarification on the issue, but for now at least, employers should still be as thorough as possible in documenting impairment to ensure the least liability in the event they do discipline someone for it.
"If somebody is on prescription drugs, they can still be impaired during work hours by using the prescription drug, and employer policies are going to prohibit that," he said. "If you treat the medical marijuana issue just like you would that situation, I think that that's fine. I would incorporate that and follow that same procedure."