EMPLOYMENT ATTORNEY PERSPECTIVES ON

ARIZONA’S MEDICAL MARIJUANA LAW

by Nathaniel Hill, Attorney at Law

November 13, 2013 ©JacksonWhite, P.C. (2013) All Rights Reserved

ABOUT JACKSONWHITE

• We offer a full range of legal services to assist individuals, families, and businesses.

• Founded in 1983.

• The firm has grown steadily to include 20 highly experienced attorneys.

• We are proud to be one of the largest law firms in the East Valley.

Presenter Biography• Nate Hill focuses his practice areas on employment and labor law and

commercial litigation.

• Bar Admissions: Nate is a member of the Arizona and California State Bars. Nate is also licensed in Arizona’s Federal District Court and the Ninth Circuit Court of Appeals.

• Education: Nate holds a B.A. in philosophy from B.Y.U. and a Juris Doctor from the University of Kansas.

• Representative Cases: Allstate Utility Const. LLC v. Towne Bank, 228 Ariz. 145 (App. 2011) (successfully reversed trial court ruling that denied contractor’s materialman’s lien rights); Maggi v. Creative Health Care Services, Inc., Case No. CV12-00566-NVW (Mar. 12, 2013 D.Ariz) (successfully defended employer accused of creating hostile work environment).

• Publications: Surviving Life and Law School, JOURNAL OF THE KANSAS BAR ASSOCIATION (Sept. 2009).

• Phone: 480.464.1111• Fax: 480.464.5692• Email: nhill@jacksonwhitelaw.com

Proposition 203 on November 2010 ballot

• YES: 841,346• NO: 837,005• Law passed with 50.13% of votes• Law went into effect in December 2010

Qualifying Patient and Caregiver may possess limited amount of marijuana without criminal prosecution.

Background of Arizona’s Medical Marijuana Law

A.R.S. § 36-2801(3) "Debilitating medical condition" means one or more of the following:

(a) Cancer, glaucoma, positive status for H.I.V. or A.I.D.S., hepatitis C, amyotrophic lateral sclerosis (“ALS”), Crohn's disease, Alzheimer's or the treatment of these conditions.

(b) A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following: cachexia or wasting syndrome (common side effect of cancer, AIDS, COPD, MS, CHF, TB, and other deficiency syndromes); severe and chronic pain; severe nausea; seizures, including those characteristic of epilepsy; or severe and persistent muscle spasms, including those characteristic of multiple sclerosis.(c) Any other medical condition or its treatment added by the department pursuant to section 36-2801.01.

Resistance from Arizona Politicians

• Arizona v. United States (2011)• Arizona sued U.S. Dept. of Justice in federal court seeking to have the medical marijuana law ruled

unconstitutional as being in conflict with the federal Controlled Substances Act.• Judged dismissed Arizona’s lawsuit for “Ripeness”

• Compassion First, LLC v. AZ Dept. of Human Services (Jan. 2012)• Arizona DHS resisted processing dispensary applications because of pending federal lawsuit.• Dispensary company sued DHS to compel approval of application.• Judge ordered immediate processing of applications and publication of proper dispensary

guidelines.• Attorney General Opinion No. I12-001 (Aug. 2012)

• Cultivating, selling, possessing, and dispensing marijuana preempted by federal law.• Issuance and use of medical marijuana card not preempted.• Employment discrimination issues not addressed.

States de-criminalizing marijuana use as of August 2013

Legal Medical UseDe-criminalized PossessionBoth Medical and De-criminalizedLegalized Use

Not a free license to smoke potUnder A.R.S. § 36-2802, cardholders still subject to civil and criminal penalties if they use marijuana while:

A. “Undertaking any task under the influence of marijuana that would constitute negligence or professional malpractice.”

B. Cannot be possessed or used: (1) on a school bus; (2) at a school; (3) in a jail;

C. Cannot be smoked on public transit or anywhere in public.

D. “Operating, navigating, or being in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marijuana, except 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.”

E. Using marijuana except as authorized under this chapter.

AMMA’s Unique Anti-Discrimination Provision

• A.R.S.§ 36-2813 Discrimination Prohibited• (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.

• Other states do not have employment anti-discrimination provisions.

Arizona Employer Concerns• Liability for injuries or damages caused by “impaired” employees.• Compliance with state and federal workplace safety requirements;

e.g., OSHA, Dept. of Transportation, ADEQ, EPA, and other “safety-sensitive” duties.

• Workers Compensation or other insurance discounts for having a “drug-free workplace.”

• Guidelines for hiring, disciplining or terminating employees.• Guidelines for accommodations and leave requests.• Countless individual concerns.

Lack of official Arizona policies leaves employers “Dazed and Confused”

• No Arizona courts have yet interpreted the employment provision.• Court rulings in other states cannot be relied on because they are

based on different statutes that do not contain the employment anti-discrimination provision.

• Regulations issued by Arizona Dept. of Health Services only address cardholder and dispensary issues, not employment.

• Arizona Division of Occupational Safety and Health (“ADOSH”) has not issued any policies or guidance regarding the application of the AMMA and workplace safety guidelines.

What should you do

Remember, the AMMA is not a free license to smoke pot.

• Under A.R.S. §36-2802, cardholders cannot operate motor vehicles while “under the influence of marijuana” (hold that thought).

• The AMMA has several employer exemptions:• The statute applies to all Arizona employers “[u]nless a failure

to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations. . .” A.R.S. § 36-2813(B) (emphasis added).

Are you covered by the U.S. Dept. of Transportation?

• http://www.dot.gov/odapc/am-i-covered

Covered by U.S. DOT

• Employers who operate Commercial Motor Vehicles (CMV) and/or employ individuals required to have a Commercial Driver’s License (CDL) are subject to Federal Motor Carrier Safety Administration (“FMCSA”) Regulations. 49 C.F.R. § 383.3(a).

• Under those regulations, drivers may not report for duty or remain on duty requiring performance of safety sensitive functions if employee has used controlled substance (including marijuana) or if employer has knowledge that employee has used controlled substance. 49 C.F.R. § 382.213.

• Expressly preempt state laws. 49 C.F.R. § 382.109.• “Any employer or driver who violates the requirements of this part shall be subject to the civil

and/or criminal penalty provisions of 49 U.S.C. 521(b).” 49 C.F.R. § 382.507. • 49 U.S.C. § 521(b)—Civil penalties up to $10,000 per violation; criminal penalties of fine up to

$5,000 and up to 90 days imprisonment; impounding commercial vehicles; and other penalties.

Other federal contracting programs incorporate these DOT requirements and require compliance for eligibility.

OSHA Requirements???OSHA does not specifically address medical marijuana, however…

• Occupational Safety and Health Act• 29 U.S.C. § 654(a) states “(1) shall furnish to each of his

employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; (2) shall comply with occupational safety and health standards promulgated under this chapter.”

What about Arizona’s laws?• Employer may not be penalized or denied benefit under state law for

employing card holder. A.R.S. § 36-2811(I).• SCF of Arizona FAQs regarding the AMMA:

• https://www.scfaz.com/employers/employers.php?load=FAQ_medical_marijuana.html&bc=FAQs• Employers still receive discount for drug testing programs and other general

guidance.

• Arizona Division of Occupational Safety and Health (“ADOSH”) has NOT issued any guidance on AMMA and drug testing requirements.

• However, similar to OSHA’s federal requirements, ADOSH statutes require that “[e]ach employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” A.R.S. § 23-403(A).

“Safety-Sensitive Positions”Employers are protected from liability for taking actions against an employee (including reassignment and termination) if they have an established policy and program to test for alcohol, drugs and impairment.

A.R.S. § 23-493.06.• Particularly to exclude an employee from performing a “safety-

sensitive position.” A.R.S. § 23-493.06(A)(7).

“Safety-Sensitive Position”Defined as “any job designated by an employer as a safety-sensitive position 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, including any of the following:

a) Operating a motor vehicle, other vehicle, equipment, machinery, or power tools;

b) Repairing, maintaining, or monitoring the performance or operation of any equipment, machinery, or manufacturing process, the malfunction or disruption of which could result in injury or property damage;

c) Performing duties in the residential or commercial premises of a customer, supplier, or vendor;

d) Preparing or handling food or medicine;

e) Working in any occupation regulated pursuant to **title 32.”

A.R.S. § 23-493(9).

“Good faith” defined at A.R.S. § 23-493(6).

**Title 32, or A.R.S. § 32-101, et seq., includes architects, assayers, engineers, geologists, home inspectors, landscape architects, surveyors, CPAs, Doctors, Dentists, Nurses, Registered Contractors, Real Estate brokers and agents, Pest Control, Security guards, Appraisers, and others.

How do I reconcile my duty to keep employees and the public safe with the anti-discrimination provisions of the AMMA?

• AMMA clearly conflicts with workplace safety requirements.• This is why court decisions and official government policies are

needed to clarify this issue.

• Informal consensus among employment attorneys:• Treat the employee the same as an employee using any other

legally prescribed medication.• “For the purposes of medical care, including organ transplants, a

registered qualifying patient's authorized use of marijuana must be considered the equivalent of the use of any other medication under the direction of a physician and does not constitute the use of an illicit substance or otherwise disqualify a registered qualifying patient from medical care.” A.R.S. § 36-2813(C).

How do I treat marijuana the same as any other legally prescribed medication?

• Apply existing interactive processes developed for determining accommodations under the Americans with Disabilities Act (“ADA”).

• Employer cannot make inquiries into medical condition unless job-related and consistent with business necessity. • 42 U.S.C. § 12112(d)(4)(A); see also, Yin v. California, 95 F.3d 864, 868

(9th Cir. 1996) (employer permitted to inquire into ability to perform job because condition had deleterious effect on productivity and job performance).

• Does the employees use of medication create a “direct threat” of harm to the employee or others? 42 U.S.C. § 12112(b)(6).• Direct threat is determined by employer performing an “individualized

assessment” of the essential functions of the job. 29 C.F.R. § 1630.2(r); Sch. Bd. of Nasau v. Arline, 480 U.S. 273 (1987) (four-factor test for direct threat).

Jeff Spicoli applies with your company. His resume and experience are impressive. However, this is how he arrives for his job interview.

He notices you smelling the marijuana on his clothes, so he tells you he was “blasted while ranking a big mamma in Australia and got raked on the cactus—so I got a card, bro.” Thanks to stalking your kids on Facebook, you translate that as chronic pain from a surf injury as the basis for a medical marijuana card. How do you handle this?

Status as a cardholder cannot be basis for refusing to hire Spicoli.

• Under A.R.S. § 36-2813(B), “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) status as a cardholder or (2) positive drug test unless employee “used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.”

• We’ll talk about “impaired” in a minute.

• Verify employee’s status as a cardholder:• Go to Arizona Dept. of Health Services: Medical Marijuana ID Card

Verification• http://www.azdhs.gov/medicalmarijuana/id-card-verification/index.htm

Spicoli checks out!

Cheech Marin and Thomas Chong work as a driving team delivering items across Arizona. They are NOT CDL licensed. Cheech takes his eyes of the road to examine something Chong refers to as “labrador” and crashes the vehicle.

The responding officer issues Cheech a breathalyzer for alcohol but it is negative. The officer notes in the report that the driver (Cheech) had delayed verbal responses, droopy eyes, and emits a strong odor of marijuana. Cheech shows the officer his card and is not cited. Cheech returns to the office and submitts to a U.A., which is positive for marijuana. When confronted he presents his marijuana ID card. What do you do?

Cheech can be disciplined or terminated for being “impaired” while at work.

• AMMA does not define “impaired.”

• Under A.R.S. 36-2813(C), a card holding employee cannot be disciplined for “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. 36-2802(D) states, “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.”

Was this a “safety-sensitive position”?• ADOSH statutes define “Impairment” as:

• “symptoms 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, including symptoms of the employee's speech, walking, standing, physical dexterity, agility, coordination, actions, movement, demeanor, appearance, clothing, odor, irrational or unusual behavior, negligence, or carelessness in operating equipment, machinery, or production or manufacturing processes, disregard for the safety of the employee or others, involvement in an accident that results in serious damage to equipment, machinery, or property, disruption of a production or manufacturing process, any injury to the employee or others, or other symptoms causing a reasonable suspicion of the use” of drugs or alcohol.” A.R.S. § 23-493(7).

Employer must have “good faith” basis to consider employee impaired. A.R.S. § 23-493.06(A)(7).

• “Good Faith” means “reasonable reliance on fact, or that which is held out to be factual, without the intent to deceive or be deceived and without reckless or malicious disregard for the truth. Good faith does not include a belief formed with gross negligence. A good faith belief may be based on any of the following:a) Observed conduct, behavior, or appearance.

b) Information reported by a person believed to be reliable, including a report by a person who witnessed the use or possession of drugs or drug paraphernalia at work.

c) Written, electronic, or verbal statements.

d) Lawful video surveillance.

e) Records of government agencies, law enforcement agencies, or courts.

f) Results of a test for the use of alcohol or drugs.

g) Other information reasonably believed to be reliable or accurate.

• A.R.S. § 23-493(8).