Thu, May 23

Arizona employees cannot be fired for using medical marijuana

PHOENIX -- Arizona law could preclude the kind of fight playing out in Colorado over whether workers testing positive for medical marijuana can be fired.

The crafters of the 2010 Arizona included a specific provision spelling out that an employer may not make decisions on hiring, firing or discipline based on the person's status as a registered marijuana user.

But it goes farther than that. More to the point, it says says that a positive drug test for marijuana from someone who is a registered user cannot be used against that employee unless the person either used or possessed the drug at work or was actually impaired while on the job.

The only exception is in cases where an employer is required to do drug testing under federal law for things like truck drivers.

There is, however, no definition of what constitutes being "impaired.' And the issue has never been reviewed by the Arizona Supreme Court.

The one time the high court did weigh in earlier this year on the parallel question of driving. In a unanimous ruling, the justices said those who smoke marijuana cannot be charged with driving while impaired absent actual evidence they are affected by the drug.

Without dissent, the justices rejected arguments by the Maricopa County Attorney's Office that a motorist whose blood contains a slight amount of a certain metabolite of marijuana -- what's left over after the drug is processed by the body -- can be presumed to be driving illegally because he or she is impaired. The court said the medical evidence shows that's not the case, pointing out that the metabolite remains in the blood long after someone can be presumed to be impaired.

That same argument likely would apply to an employee who tests positive absent any other evidence of impairment.