1. MEDICAL MARIJUANA AND THE AMERICANS WITH DISABILITIES ACT Presented by Hoyt S. Neal of Wood Smith Henning & Berman LLP The following material is intended to be the author’s summary and opinions of law in the state of Arizona. It is NOT legal advice and because interpretation depends on the particular facts and circumstances, the author cautions anyone against using the following as anything other than a general guide.

2. T ODAY ’ S A GENDA General Principles. “Illegal Drugs” and the ADA. Case Law Interpreting “Illegal Drugs”. Arizona’s Medical Marijuana Statutes. Questions Under Arizona’s Medical Marijuana Laws. Recommendations.

3. T HE A MERICANS WITH D ISABILITIES A CT The Americans with Disabilities Act of 1990 (ADA) – The ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship. It prohibits employers from discriminating against qualified individuals with disabilities in job application procedure, hiring, firing, advancement, compensation, training, and other terms, conditions and privileges of employment. Accommodation – in general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. - 42 U.S.C.§§12101-12117, 12201-12213 (1994)

4. T HE ADA’ S D EFINITION OF ILLEGAL DRUGS Under the ADA, an “individual with a disability” does not include one engaging in the illegal use of drugs. The “illegal use of drugs” is defined as “the use of drugs, the possession or distribution of which is unlawful under the Federal Controlled Substances Act.” This term does not include the use of a drug taken under the supervision of a licensed health care professional.

5. C ASE L AW I NTERPRETING “I LLEGAL D RUG U SE ” James v. City of Costa Mesa (9 th Cir., 2012): “The ADA defines ‘illegal drug use’ in reference to federal law, rather than state law, and federal law does not authorize the [use of] medical marijuana.” Although medical marijuana is legal under California state law, the Controlled Substances Act prohibits it. Therefore, the court interpreted the ADA to mean that state-authorized medical marijuana use is not covered by any exception, because it is illegal under federal law.

6. C ASE L AW I NTERPRETING “I LLEGAL D RUG U SE ” Coats v. Dish Network (Colo. Supreme Ct., 2015): The Colorado Supreme Court held that an employee who suffered from debilitating muscle spasms who possessed a medical marijuana card could be terminated for his use of medical marijuana, even though the employee was never under the influence of the drug on company premises. Colorado’s “Lawful Activities” law prohibits termination for off-the- clock legal behavior; the court here found that marijuana use was not a “lawful activity” under that law due to its illegality under federal law, even though Colorado state law expressly permits it. This holding may strengthen the argument that employers can terminate employment for marijuana use, regardless of its legality under state law.

7. AZ’ S M EDICAL M ARIJUANA L AWS Ariz. Rev. Stat. Ann. §§ 36-2801 to -2819 Under the statute, a qualifying patient and a designated caretaker may possess or cultivate the requisite amount of marijuana so long as they have properly joined the Arizona Department of Health Services registry. To be considered a qualifying patient, a person must obtain a written diagnosis for a debilitating medical condition from his/her physician. Debilitating medical conditions include cancer, glaucoma, HIV/AIDS, hepatitis C, amyotrophic lateral sclerosis, Crohn's Disease, Alzheimer's Disease, and other chronic or debilitating diseases or medical conditions or treatment that produces certain debilitating side effects.

8. AZ’ S M EDICAL M ARIJUANA L AWS The Statute also specifies that an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either: 1. The person’s status as a medical marijuana cardholder, or 2. A registered qualifying patient’s positive drug test for marijuana, unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.

9. Q UESTIONS UNDER A RIZONA ’ S M EDICAL M ARIJUANA L AWS Do employers have to permit a positive drug test as a disability accommodation? The law is unclear on this point. While state laws do not provide protection for a disabled employee who appears for work while intoxicated, regular marijuana use can result in a positive drug test even when a person is not presently intoxicated. Because tests are unable to provide an accurate portrayal of the timing of marijuana use, employers should keep in mind the Arizona statute prohibiting employers from disciplining an employee with a valid marijuana prescription for using marijuana during non-work hours.

10. Q UESTIONS UNDER A RIZONA ’ S M EDICAL M ARIJUANA L AWS May an employer fire an employee for a positive marijuana drug test? It depends. The Arizona medical marijuana statute expressly prohibits employers from firing an employee for a positive marijuana drug test if the employee holds a valid marijuana card. However, this only applies to off-hours and off-site use or influence, when used in connection with a valid prescription. State laws do not provide protection for disabled employees who appear for work while intoxicated. In that case, an employer could document signs of impairment and use witness testimony to justify the firing of an intoxicated employee. Of note, a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.

11. Q UESTIONS UNDER A RIZONA ’ S M EDICAL M ARIJUANA L AWS Can an employer refuse to hire an applicant who tests positive for marijuana in a pre-employment drug test? Under the Arizona Medical Marijuana Statute, an employer cannot refuse to hire an applicant for this reason, as long as the applicant is a valid cardholder. However, if the employer would lose federal licensing for such a hiring, it is not required to hire the applicant.

12. Q UESTIONS UNDER A RIZONA ’ S M EDICAL M ARIJUANA L AWS Are federal employers governed by state or federal laws regarding medical marijuana use and the workplace? Marijuana policies for federal contractors are governed by the federal Drug Free Workplace Act, which requires that federal contractors enforce zero-tolerance drug policies regarding use of illegal drugs in the workplace. Because marijuana is still an illegal drug under federal law, federal contractors are not required to accommodate marijuana use, even if state laws would require it. Arizona’s laws expressly exempt federal contractors from any duty to accommodate an employee’s marijuana use.

13. R ECOMMENDATIONS Before taking any disciplinary action against an employee for medical marijuana use, seek guidance from an experienced employment attorney. Stay up-to-date on federal and state medical marijuana laws, as they can be conflicting. Arizona has not produced much case law regarding its medical marijuana laws; therefore, it may be helpful to watch trends in other jurisdictions as well. Stay abreast of advances in drug testing that may eventually help detect more accurate levels of marijuana metabolites, which could help determine whether an employee is presently “intoxicated” while on the job.