© 2011 Jackson Lewis LLP
© 2011 Jackson Lewis LLP www.jacksonlewis.com
SCCE’s Regional Compliance & Ethics Conference
Jeffrey ToppelJackson Lewis P.C., Phoenix2398 E. Camelback RoadSuite 1060Phoenix, Arizona 85016(602) [email protected]
The Arizona Medical Marijuana Act:
The Implications for Employers
Prop 203 …Passes by Thread
It took over a week after the November2011 election for the “Yes” on Prop 203vote to overcome the “No” vote but itultimately did in a barnburner.
• YES = 841,348• NO = 837,008
MARGIN = 4,340
© 2011 Jackson Lewis LLP
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.
© 2011 Jackson Lewis LLP
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
• 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
Since California passed Prop 215 in 1996, 23 states and DC have passed medical marijuana legislation:
© 2011 Jackson Lewis LLP
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. 2014 legalizing
recreational marijuana
and establishing a
network of retail
marijuana stores.
Arizona Medical Marijuana CardsBy 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 18‐60
*Statistics are from the Arizona Department of Health Services’ 2014
AMMA Year End Report.
© 2011 Jackson Lewis LLP
AMMABy 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.
© 2011 Jackson Lewis LLP
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.
© 2011 Jackson Lewis LLP
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 2012.
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’sWorkplace Provisions
Non‐Discrimination Provision
A.R.S. § 36‐2813
B. Unless a failure to do so would cause an employer to lose amonetary or licensing related benefit under federal law orregulations, an employer may not discriminate against aperson in hiring, termination or imposing any term orcondition of employment or otherwise penalize a personbased upon either:
1. The person’s status as a cardholder.
2. A registered qualifying patient’s positive drug test formarijuana components or metabolites, unless thepatient used, possessed or was impaired by marijuanaon the premises of the place of employment or duringthe hours of employment.
© 2011 Jackson Lewis LLP
The Proposition’s Workplace Provisions
Employer Rights Provision
A.R.S. § 36‐2814
A. Nothing in this chapter requires:
***
3. An employer to allow the ingestion of marijuana in anyworkplace or any employee to work while under theinfluence of marijuana, except that a registeredqualifying patient shall not be considered to be underthe influence of marijuana solely because of thepresence of metabolites or components that appear ininsufficient concentration to cause impairment.
B. Nothing in this chapter prohibits an employer fromdisciplining an employee for ingesting marijuana in theworkplace or working while under the influence ofmarijuana.
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. § 23‐493, 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.
© 2011 Jackson Lewis LLP
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.
© 2011 Jackson Lewis LLP
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.”
© 2011 Jackson Lewis LLP
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.
© 2011 Jackson Lewis LLP
23
Top Related