Badoux: Medicinal marijuana’s employment law ramifications

It seems I am encountering more and more employees that seem to think marijuana is legal in Arizona.

Laurent Badoux

It seems important to remind people from time to time that marijuana remains a controlled substance under federal law and is only legal under Arizona state law for medicinal purposes and as long as the federal government chooses not to enforce its ban of marijuana against individuals that are acting within state law.

Under Arizona law, the possession, sale and use of marijuana are only legal in conjunction with dispensing to someone who is a recognized medical user. If you do not have a medical user card, you are not a legitimate user and, as I explain below, failing a drug test at work will likely get you fired.

If you are a card-carrying user, the Arizona Medical Marijuana Act protects you from termination from employment in the form of an anti-retaliation provision. In other words, an employer cannot fire you simply because you have a marijuana card.

That protection is not absolute.

It is important to understand what it does and does not protect. Specifically, there are three issues that support the termination of an employee that fails a drug test for marijuana impairment, even if that employee is a recognized medicinal user.

First, when an employer identifies that an employee is noticeably impaired by marijuana, or any other substance, including a legal one like alcohol or a prescribed medication, while at work, an employer may terminate that employee — or administer a drug test, which could also lead to firing, if positive.

An employee should avoid consuming marijuana in any form just before work or while at work or risk termination to avoid being or noticeably appearing under the influence of marijuana. Employees that require frequent use of marijuana for medicinal purposes should keep this exception in mind and schedule the timing of their consumption to minimize the risks of workplace impairment.

Second, an employee working in a job designated as “safety-sensitive” should not consume any controlled substance, legal or not. Arizona law has been expanded to include a broad definition of what constitutes a safety-sensitive position, to include, among many factors, the handling of power tools, driving, climbing ladders or scaffolds and manipulating objects that can cause harm to self or others. Employers routinely administer pre-hire drug test for individuals applying for safety-sensitive positions. Medicinal marijuana users should be mindful that their application for such positions will more likely than not be rejected, even if they have a card.

Third, if a company does business with the federal government, it could lose its status as a federal service provider for not complying with federal law, which includes the Controlled Substances Act.

Under the CSA, marijuana is still labeled a controlled substance and its use is prohibited in the performance of work for the federal government. As a result, Arizona law exempts companies with federal contracts from compliance with the AMMA. If you apply to work for a company that is fulfilling a governmental contract or working on a federally funded project, odds are you will be asked to submit to a drug test and having a medical marijuana card will be irrelevant.

Lastly, at the risk of stating the obvious, an employee terminated for testing positive for marijuana cannot obtain a medical marijuana card after the termination to obtain retroactive protection of the AMMA. The card must be issued before the consumption of marijuana occurs for it to be protected.

Keep that in mind, be safe and be smart in your employment decisions.

Editor’s note: Mr. Badoux of the Buchalter Law Firm focuses his practice on employment and labor law, with an emphasis on compensation and employee relations advice.

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