Issue Will be Tested

The issue is likely to be tested in Arizona's workplaces. The law specifies that medical marijuana is for grave illnesses -- such as cancer, HIV and glaucoma -- but it is increasingly common for employees with serious illnesses to continue to work long after their diagnosis.

Because there is no standard for being under the influence of marijuana, defining what it means to be impaired by the drug on the job is more difficult. In general, employment law allows termination for poor work performance.

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

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

Many states with existing medical-marijuana laws are still struggling with many of the same issues. Many may have to be resolved in court. However, because states have separate statutes and judicial systems, decisions in one state may not carry weight in another.

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

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

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

Employer Worries

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

While regulations are still being drafted, Arizona's statute explicitly prohibits employers from discriminating against workers who are medical-marijuana cardholders. That group includes people who lawfully use medical marijuana, people who work or volunteer in dispensaries, and designated caregivers who assist patients who use medical marijuana.

The discrimination rule also has an exception. Because marijuana is illegal under federal law, this gives companies with federal contracts an "out," allowing them to avoid employing medical-marijuana users so they don't risk losing contracts or funding.

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-marijuana prescription but is still able to work in the workforce, how would that affect the safety of our employees and the quality of our work?" said Stegemoller, president of E&K of Phoenix, Inc.

Because of safety concerns, E&K requires that job candidates take drug tests. The company also uses random drug testing, and workers are tested for drugs after workplace accidents. Workers disclose what kind of prescriptions they use, he added.

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

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

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

Lawyers' Advice

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

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

Companies should consider revising internal policies to include information about the state's new medical-marijuana law, Lomax added.

Since marijuana can stay in people's systems weeks after they use it, companies must be prepared to deal with workers who test positive for the drug, said John Kerkorian, a lawyer at Ballard Spahr LLP who advises employers.

And although a company may take action if a medical-marijuana user is under the influence while working, impairment may be difficult to prove, Kerkorian said.

Unlike with alcohol, there isn't an accepted standard for marijuana intoxication, such as a blood-alcohol level, he added.

"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 Arizona Republic, where this article originally appeared. [email protected] or 602-444-2473.