A JacksonWhite employment law attorney explains the Arizona Medical Marijuana Act and what AZ employers need to know.

1. 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

2. 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.

3. 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

4. Background of
Arizona’s Medical Marijuana Law
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.
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.

5. 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.

6. States de-criminalizing marijuana use as
of August 2013
Legal Medical Use
De-criminalized Possession
Both Medical and De-criminalized
Legalized Use

7. Not a free license to smoke pot
Under 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
B.
C.
D.
E.
would constitute negligence or professional malpractice.”
Cannot be possessed or used: (1) on a school bus; (2) at a
school; (3) in a jail;
Cannot be smoked on public transit or anywhere in public.
“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.”
Using marijuana except as authorized under this chapter.

8. 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.

9. 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 “safetysensitive” 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.

10. 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 antidiscrimination 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.

11. 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).

12. Are you covered by the
U.S. Dept. of Transportation?
• http://www.dot.gov/odapc/am-i-covered

13. 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.

14. 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.”

15. 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_marijuan
a.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).

16. “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).

17. “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.

18. 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).

19. 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).

20. 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?

21. 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

22. Spicoli checks out!

23. 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?

24. 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.”

25. 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, appe
arance, 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).

26. 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)
b)
c)
d)
e)
f)
g)
Observed conduct, behavior, or appearance.
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.
Written, electronic, or verbal statements.
Lawful video surveillance.
Records of government agencies, law enforcement agencies, or
courts.
Results of a test for the use of alcohol or drugs.
Other information reasonably believed to be reliable or accurate.
• A.R.S. § 23-493(8).