Arizona is the latest of 15 states to adopt laws that allow qualifying persons to possess and use marijuana for medical purposes.

What does this mean for employers? If a worker has received a State-issued medical marijuana card, can their employer fire them for possessing marijuana at home? How about on the job? What if the employer suspects that the cardholder is under the influence of marijuana at work? Can an employer drug-test a cardholder and fire them if they test positive for marijuana?

The Arizona Medical Marijuana Act (approved by voters in November 2010) is new, arguably vague, and untested, and it is too early to know exactly how it will be interpreted and enforced. For those reasons, we recommend that, before taking any employment action related to medical marijuana, all employers get legal advice from an experienced employment lawyer.

What You Need to Know

It is illegal to discriminate against a medical marijuana cardholder – subject to certain exceptions (below). Under normal conditions, an employer can’t just fire a worker for holding a medical marijuana card. The same goes for firing an employee for off-work marijuana use, but, again, see the exceptions below. That does not mean that an employer must allow an employee to use marijuana at work or put up with an employee who is obviously impaired to the point that they can’t do their job or that they put themselves or others in danger, but employers need to be careful how they deal with these situations.

The Risk of Discrimination

I see the biggest risk as not just illegal discrimination against a medical marijuana cardholder but also possible violation of the Americans with Disabilities Act. Let me explain by starting with a little background.

Arizona’s medical marijuana law is different from the medical marijuana law of many other states. Some states are very lenient in granting people licenses to possess and use marijuana for numerous medical reasons. Arizona is different; our state requires the cardholder to have a “debilitating medical condition.” Such conditions are most notoriously associated with serious, life-threatening conditions such as cancer, glaucoma, HIV (AIDS), hepatitis C, amyotrophic lateral sclerosis (Lou Gehrig’s Disease), Crohn's disease, agitation of Alzheimer’s disease, or the treatment of these conditions as well as “cachexia or wasting syndrome; severe and chronic pain; severe nausea; seizures, including those characteristic of epilepsy; or severe and persistent muscle spasms, including those characteristic of multiple sclerosis.”

Even if the employer could discriminate against the employee for using marijuana, it would be risky to do so if the employee has any of the above conditions, because of the anti-discrimination and health privacy laws. Many people who are suffering from these chronic, life-threatening illnesses will be too ill to work, so it is not likely that many employees will be in this unfortunate position. However, if you are accused of discriminating against them in their employment, education or residential lease, you risk being portrayed in court (and perhaps in the media) as the “big, bad, rich employer” who is preventing a seriously ill employee from working because of their medical use of marijuana.

For these reasons, do not discriminate against a medical marijuana cardholder or even ask them about their reasons for having the card, because questions about the “debilitating medical conditions” could support a discrimination claim.

Exceptions to the Law

Although employers generally cannot discriminate against marijuana card-holding workers, there are several exceptions that further complicate what an employer can do. H.B. 2541, which passed the Arizona legislature in the closing days of the 2011 session, provides an exception for employers in situations when NOT taking action based on the licensing or use of medical marijuana “… would cause an employer to lose a monetary or licensing related benefit under federal law or regulations.” That would include many different kinds of employees doing many different kinds of jobs, including certain transportation workers and employees of companies required to have “drug-free workplace” policies pursuant to certain federal contracts or other obligations.

Also, an employer does not have to allow workers to ingest marijuana in the workplace or to work under the influence. At the same time, a drug test resulting in a positive result for a small amount of marijuana metabolites, with no other supporting evidence of impairment on the job, does not constitute working under the influence of marijuana.

Generally, employers have safeguards protecting them and giving them a second chance to resolve discrimination-related disputes. Some of these safeguards are requirement of the employee to put the employer on notice of discrimination claims, EEOC (or Arizona Civil Rights Division) claim filing requirements, demand for reasonable accommodation by the employee, etc. However, at least one other experienced Arizona employment lawyer suggests that employees can sue the employer directly for violation of the medical marijuana law or for illegal discrimination against medical marijuana cardholders. It is too early to know whether this is true, and it likely will not be known until a lawsuit is decided in the Arizona Court of Appeals or Arizona Supreme Court.

This is one of those issues where it is better for the employer to comply with the law and avoid a lawsuit than to test what procedural steps a worker must take to sue the employer.

Protecting Your Business

See a competent and experienced business and employment lawyer to review your likely exposure and what you should do if an issue arises. Review with your lawyer your company’s policies, procedures, employee manuals and drug testing procedures – before you have a problem. If and when a medical marijuana issue arises, contact your attorney immediately so the situation does not get out of hand.