Medical Marijuana Law Addresses Discrimination

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In November, Arizona voters approved Proposition 203, the Arizona Medical Marijuana Act, making Arizona the 15th state, plus the District of Columbia, to legalize medical marijuana.

Like other medical marijuana acts, the law permits patients who suffer from certain debilitating and life-threatening illnesses to possess and use medical marijuana as recommended by their physician and protects the treating physicians from arrest, prosecution and other penalties.

The key differentiator between Arizona’s Act and most other medical marijuana acts is the employment discrimination provisions.  The Arizona law states:

“An employer may not discriminate against a person in hiring, terminating or imposing a term or condition of employment or otherwise penalize a person based upon either:”

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

What does this mean for Arizona employers and how are their drug testing programs impacted?

The bottom line is that Arizona employers cannot discriminate against employees who are registered medical marijuana cardholders just because they test positive for marijuana. They can, however, prohibit the use, possession and impairment of marijuana at work.

It is important for Arizona employers to review their drug testing policies with their legal counsel to ensure compliance with this new law.

Two other provisions that are important to note are:

  1. The Arizona Act does not affect Federally regulated drug testing
  2. Medical marijuana use in safety-sensitive jobs

Medical marijuana does not constitute a medical explanation in federally regulated/mandated programs. So, employees testing positive for marijuana under a DOT regulated program would be subject to these federal regulations/rules.

For other non-DOT safety-sensitive positions, Arizona employers are still entitled to assurance that employees can perform their duties in a safe and efficient manner. Employers should consider treating medical marijuana the same as any other prescription-drugs to help ensure and protect safety in the workplace.

Medical marijuana, remains a federally prohibited Schedule I drug. Most medical review departments do not recognize medical marijuana as a valid explanation for a positive drug screen result. Therefore, specimens testing positive for marijuana are reported as positive test results, absent some other legitimate medical explanation.

In states where medicinal marijuana recommendations can be made and authorized by a treating physician, a drug screening donor who alleges medicinal marijuana is told at the time of interview that they need to address their medicinal marijuana use by contacting their employer/potential employer to determine the employer’s policy regarding such use.

If you are a company which will accept medicinal marijuana as a reason for a positive marijuana drug screen result, you may want to get proof of this recommendation from the treating physician in the form of a medical safety clearance letter. This letter would state the donor is under the care of that physician, and this physician has made the recommendation of medicinal marijuana. The letter would also address that the donor can safely perform his/her basic job function with his/her appropriate use of medicinal marijuana. This letter could then be attached to the positive drug screen report and stored in the donor’s confidential file.

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