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Medical marijuana creates different challenges for employers

Arizona voters legalized medical marijuana a few years ago, but employers are still adjusting to how these new laws affect how they handle their employees.

In some ways, medical marijuana use is no different than any other prescription drug. But it is still an intoxicant and even with a medical marijuana card, there are restrictions on use by workers.

It is a tricky time for many employers: There are state and federal patient rights to uphold, but marijuana, even for medical use, is still illegal under federal law.

“It is federally illegal to own and carry marijuana,” said Thom Cope, a partner at Mesch, Clark & Rothschild, who specialized in employment law. Cope said the federal prosecutors have said they generally will not prosecute the federal law unless the employee is selling marijuana, though he cautioned that stance could change.

There are more than 77,000 qualified patients with medical marijuana cards in the state. The average age is roughly 44 for men and roughly 48 for women. The top reason for use is severe and chronic pain, though patients can qualify for a card for other conditions, including cancer, AIDS, glaucoma, ALS and seizures.

Employees who are using medical marijuana have a protected status under the Americans with Disabilities Act (ADA). This means that an employer, or prospective employer, may not ask if someone has a medical marijuana card. Even employers who find out have limited options.

“Once you find out someone has a card they may not be treated different just because they have a card,” said Cope. “You may not fire someone just because they have a card and you may not fire someone just because they test positive for THC.”

While employees cannot be discriminated against in the workplace due to medical marijuana usage, it does not mean they have free rein to use weed. In some ways it is similar to alcohol; it may be used off the clock if it does not hamper job performance.

“Employees may not be under the influence of marijuana to the extent they are impaired in the workplace,” said Cope. “Smoking or possessing marijuana during work hours on the employer’s or customer/client premises is strictly prohibited.”

Employees found in possession of marijuana may be fired, but impairment must be proven. This becomes a challenge because unlike alcohol an employee could test positive but not be under the influence. Cope explained that “impairment is subjective” with no established standard like blood alcohol content. An employer must make the determination that an employee is impaired and those determinations can be challenged by the employee. State standards allow a “good faith” defense if the employer can document evidence of an employee being under the influence. Evidence can include difficulties with speech, walking, standing, physical dexterity, agility, coordination and demeanor. The law also allows subjectivity based on appearance, clothing, odor, negligence or carelessness in operating machinery and equipment or other symptoms causing a reasonable suspicion of the use of drugs or alcohol.

In addition a business needs to have a set, written drug policy that conforms with state standards on drug testing. To protect a business from a lawsuit, the employer must show “good faith” when conducting a drug test and the test cannot test for specific drugs.

In addition to the drug-testing policy, a business should have a written marijuana card/use policy and all employees must be treated the same, with no exceptions.

Employers are also allowed to designate “safety sensitive” positions which must have the no-drug policy as part of their job description. Jobs that are able to be considered “safety sensitive” are positions that have an effect on the health and safety of employees or others. These are positions where an employee is operating, repairing or maintaining vehicles, equipment and machinery or are performing services in the premises of a residential or commercial customer. The handling of food or medicine is also eligible for a “safety sensitive position” designation.

If an employee is in a safety sensitive position, medical marijuana card protections are not applicable if they test positive for marijuana.

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