Other Work Issues Article

Can an employer fire me for having a medical marijuana card?

As an attorney practicing in the nascent field of Medical Cannabis law, one of the most common questions I get from medical marijuana patients is whether they can be fired by their employer simply for having a Medical Marijuana Card.

The short answer is No.  The long answer is much more complicated.
Arizona’s Medical Marijuana Act (the “AMMA”) is one of the most unique in the nation.  It was the first law to explicitly provide statutory protection against employment discrimination for one’s status as a MMJ cardholder.  The law states unambiguously:

B. Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either:

1. The person's status as a cardholder.
2. A registered qualifying patient's positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.

A.R.S. § 36-2813   

Sounds simple, employers can’t discriminate, right?  Well in practice it is much more difficult than that.  First the law exempts employers who would lose federal money or a federal license if they allow an employee to be a medical marijuana patient.  However, what exactly this means in practice is undetermined.  What about a long-term care facility that accepts Medicare dollars?  Further the Arizona legislature in 2011 passed House Bill 2541 which allowed employers to refuse to place any employee who uses medical marijuana in a safety sensitive position.  Safety-sensitive jobs are defined as "any job that requires duties or tasks that could affect the safety or health of the employee performing the task or others."  This broad definition can be interpreted wildly differently by various employers.  For example, it almost certainly covers a driver or crane operator, but what about a teacher or a pharmacist?  These are all issues that must be resolved over time by the courts.

However, event getting to court on these issues is a challenge in and of itself.  Generally speaking most employee drug screens happen after the job offer but before actual employment.  Combine this with AZ’s at-will employment status and it becomes extremely difficult to prove that someone was not hired because of the MMJ card (and not some other reason), and even more difficult to prove that they have incurred actual monetary damages that can be awarded by court.  More often than not the costs of pursuing these lawsuits are prohibitive based on the potential for monetary recovery.
However the threat of a lawsuit is often enough to get someone their job back so if you feel you have been discriminated against because you are an MMJ cardholder please reach out to a lawyer to discuss your rights.
  
Contributing Attorney Writer: Ryan Hurley is a partner, chair of Rose Law Group’s Medical Marijuana practice group and head of the Renewable Energy Policy and Research Department at Rose Law Group.