Proposition 203

If a supervisor suspects that using marijuana for medicalreasons affects the quality of an employee's work, how should thesupervisor respond?

If employees who were prescribed medical marijuana are injuredin an accident on the job, are they eligible for workers'compensation?

What happens if a legal user of marijuana fails a company's drugtest when applying for a job?

The new law bars employers from discriminating againstmedical-marijuana users; but, employment attorneys say, it doesallow employers to terminate or take action against employees whouse medical marijuana on the job or whose work is impaired by thedrug.

Issue Will be Tested

The issue is likely to be tested in Arizona's workplaces. Thelaw specifies that medical marijuana is for grave illnesses -- suchas cancer, HIV and glaucoma -- but it is increasingly common foremployees with serious illnesses to continue to work long aftertheir diagnosis.

Because there is no standard for being under the influence ofmarijuana, defining what it means to be impaired by the drug on thejob is more difficult. In general, employment law allowstermination for poor work performance.

Issues not directly related to job performance also are expectedto crop up for employers. Because a medical-marijuana user couldfail a drug test even if he or she is not under the influence,patients who use the drug legally could still run afoul of theiremployers' drug-testing policies.

The result is widespread uncertainty among employers. In themonths before the program launches, companies and their attorneyswill be scrambling to review their drug-testing policies andscrutinize employee rules to comply with the new law.

Many states with existing medical-marijuana laws are stillstruggling with many of the same issues. Many may have to beresolved in court. However, because states have separate statutesand judicial systems, decisions in one state may not carry weightin another.

Workplace issues have arisen frequently, said Mike Meno,communications director for the Marijuana Policy Project. Hisorganization backed the successful November ballot initiative thatmade medical-marijuana use legal in Arizona.

Although there are 15 states that allow patients to usemarijuana for medical purposes, Arizona is one of a handful ofstates that spell out protections for employees who use medicalmarijuana.

"States like Maine, Rhode Island and Michigan have employeeprotections in their laws, but it might be fair to say that Arizonais more explicit in how it's spelled out employee protections,"Meno said.

Employer Worries

State officials have 120 days from Nov. 29, when electionresults were made official, to set up a system to oversee buyersand sellers of medical marijuana.

While regulations are still being drafted, Arizona's statuteexplicitly prohibits employers from discriminating against workerswho are medical-marijuana cardholders. That group includes peoplewho lawfully use medical marijuana, people who work or volunteer indispensaries, and designated caregivers who assist patients who usemedical marijuana.

The discrimination rule also has an exception. Because marijuanais illegal under federal law, this gives companies with federalcontracts an "out," allowing them to avoid employingmedical-marijuana users so they don't risk losing contracts orfunding.

Doug Stegemoller, president of a Phoenix construction company,worries how the new law will impact worker safety.

"And if one (employee) would have a medical-marijuanaprescription but is still able to work in the workforce, how wouldthat affect the safety of our employees and the quality of ourwork?" said Stegemoller, president of E&K of Phoenix, Inc.

Because of safety concerns, E&K requires that job candidatestake drug tests. The company also uses random drug testing, andworkers are tested for drugs after workplace accidents. Workersdisclose what kind of prescriptions they use, he added.

Although the law would still allow Stegemoller to fire anemployee for impaired performance, the drug testing raises newquestions. Someone who legally used medical marijuana while awayfrom work might fail a test after an accident, and the companywould have a hard time knowing if the drug use was a factor.

Stegemoller said he "sentimentally" voted for themedical-marijuana law but was unaware that some caregivers may beeligible to get medical-marijuana cards. Now, he wonders how thatwill impact his company's drug policy.

"Without question, we could have one of our employees takingcare of their parents with a grave illness, who also have a card,"he said.

Lawyers' Advice

The state expects a fully functioning medical-marijuana programby late summer.

In the meantime, companies should consult with a lawyer, reviewtheir drug-testing policies and scrutinize their employee rules,said John Lomax Jr., an attorney at Phoenix law firm Greenberg Traurig LLPwho specializes in workplace issues

Companies should consider revising internal policies to includeinformation about the state's new medical-marijuana law, Lomaxadded.

Since marijuana can stay in people's systems weeks after theyuse it, companies must be prepared to deal with workers who testpositive for the drug, said John Kerkorian, a lawyer at Ballard Spahr LLP who advisesemployers.

And although a company may take action if a medical-marijuanauser is under the influence while working, impairment may bedifficult to prove, Kerkorian said.

Unlike with alcohol, there isn't an accepted standard formarijuana intoxication, such as a blood-alcohol level, headded.

"That is going to be the rub," the lawyer said. "A positive(drug) test doesn't mean that someone is impaired."

Ultimately, many of these issues will end up in the courts,legal experts say.

Jahna Berry is a reported with the ArizonaRepublic, where this article originally appeared.[email protected]or 602-444-2473.