Discrimination on the Job Article

Medical Marijuana in the Workplace

In November 2010, Arizona’s voters approved a medical marijuana law.  A.R.S. §36, Chapter-28.1. People with certain medical conditions can legally possess up to two-and-one-half ounces of usable marijuana if the person has a registered medical marijuana card.
Job candidates and employees who use medical marijuana also have job protection under some circumstances.  To have job protection a person must be a registered medical marijuana cardholder.  The process of applying for, registering, and maintaining this medical marijuana card is explained in the law.  A.R.S. § 36.2804.02.

The Medical Marijuana Law

Arizona employers cannot refuse to hire, fire, or otherwise penalize a job candidate or employee because the person is a registered medical marijuana cardholder except if:
  •  A failure to discriminate against the medical marijuana cardholder would cause an employer to lose a monetary or licensing related benefit under federal law or regulations.  For example, the federal Department of Transportation regulations prohibit a person required to have a commercial driver’s license to drive a commercial vehicle when using marijuana for any reason.  A driver that needs a commercial driver’s license to work is not protected by the Arizona Medical Marijuana.
  • The employee uses medical marijuana on the employer’s premises or during the hours the employee is on the job.
  • The employee has medical marijuana on the employer’s premises or has medical marijuana in their possession during the hours the employee is on the job, 
  • The medical marijuana cardholder was impaired by marijuana on the premises of the place of employment or during the hours of employment.

Marijuana Impairment

Regarding marijuana impairment, the law says “that a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.”  Currently, Arizona law does not have any level of metabolites or marijuana components that establishes impairment.  This means an employer cannot act solely on the results of a positive drug test if the employee is a registered cardholder.  

Medical Marijuana Cards Issued by another State

The law provides some protection for people with a medical marijuana card from another state. A medical marijuana card issued by another state protects a person in Arizona if the person is not a resident of Arizona or who has been a resident of Arizona for less than thirty days.

Important Points

    Medical marijuana identifications cards expire one year after issue.  The medical marijuana cardholder is responsible for having a non-expired identification card.

    There is a secure, password-protected, web-based verification system for use on a twenty-four hour basis by employers to verify registry identification cards. An employer may use the verification system only to verify a registry identification card that is provided to the employer by a current employee or by an applicant who has received a conditional offer of employment.

Medical Marijuana and Arizona’s Drug Testing of Employees Law

Medical marijuana use in the workplace may also be regulated under Arizona’s Drug Testing of Employee’s Law – A.R.S. § 23, Chapter 2, Article 14.  

The Arizona Drug Testing of Employees Law protects employers from being sued if the employer acts in good faith on a positive drug test and the employer’s drug testing policy meets certain requirements. This means if a drug test shows illegal drug use even if the employee has not used drugs and the drug policy is written properly, the employee cannot sue the employer if the employer honestly believed the drug test result was correct.

A.R.S. 23-493.06 says an employer can reassign an employee in a safety sensitive position to another position or place an employee on paid or unpaid leave.  In order to remove or reassign an employee from a safety sensitive position, the employer must sincerely believe;

1. the employee is engaged in the current use of any drug, whether legal, prescribed by a physician or otherwise, (emphasis added) and,

2. the drug could cause an impairment or otherwise decrease or lessen the employee's job performance or ability to perform the employee's job duties

Arizona’s legislators added A.R.S. 23-493.06 to the Drug Testing of Employees Law shortly after the voters passed Arizona’s medical marijuana law.  Therefore, this “drug, whether legal, prescribed by a physician or otherwise,” language could be used by an employer against a registered medical marijuana cardholder.

Any conflict between Arizona’s Medical Marijuana Law and Arizona’s Drug Testing of Employees Law will have to be resolved by the court.

More Information

If you are an employer needing additional information about medical marijuana in the workplace or a job candidate or employee who believes an employer has violated the protections you have under Arizona’s Medical Marijuana Law, you should contact an attorney who specializes in employment law or medical marijuana law.

Legal Correspondent: Dave Smith  7/14/2016



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