ARIZONA MEDICAL-MARIJUANA LAW LIKELY TO TEST WORKPLACE REGULATIONS

Zero tolerance of drug use is the workplace norm in Arizona, but the
medical-marijuana law that takes effect next year will cloud what had
been a clear-cut issue for workers and employers.

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

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

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

The new law bars employers from discriminating against
medical-marijuana users; but, employment attorneys say, it does allow
employers to terminate or take action against employees who use
medical marijuana on the job or whose work is impaired by the drug.

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's 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.