Pubdate: Sun, 26 Aug 2012
Source: Arizona Republic (Phoenix, AZ)
Copyright: 2012 The Arizona Republic
Author: Yvonne Wingett Sanchez


Just days into her new job at a hospice in Cottonwood, Esther Shapiro 
claims she was fired because she uses medical marijuana to relieve 
chronic pain caused by fibromyalgia.

The hospice sent her for a drug test, and she warned them it would 
come back positive. Shapiro said the next day, a nurse manager told 
her the hospice's insurance company thought she was too much of a liability.

"It was, basically, in my opinion, crap," Shapiro told

"I was fired unlawfully." Across Arizona, employers and workers are 
settling into an uneasy relationship with medical marijuana. While a 
2010 voter-approved law forbids employers from discriminating against 
medical-marijuana patients, the law provides no protection for 
employees who are impaired at work.

And a 2011 law gave some businesses additional authority to penalize 
workers if they are believed to be impaired at work.

Still, employers across Arizona are grappling with how to handle 
workers who are now legally permitted to use marijuana.

After Shapiro was told she was too much of a liability, she looked up 
the state's medicalmarijuana law, which contains an 
anti-discrimination provision that prohibits an employer from hiring, 
firing or disciplining individuals just because of their 
participation in the state's medical-marijuana program.

She filed a lawsuit against the hospice, claiming she was 
discriminated against. The lawsuit was resolved with an out-of-court 

Trent Adams, president of Verde Valley Community Hospice, disputes 
Shapiro's account. He says she quit after staff began to research the 
potential licensing risks of hiring someone who ingests medical 
marijuana. He declined to talk about the legal dispute but said 
generally the hospice is struggling to reconcile the medical 
marijuana law's requirements with potential liabilities if a worker 
is impaired on the job, as well as the impact on federal funding for 
the facility.

"I don't have a strong opinion about medical marijuana one way or 
another," Adams said. "But what's a small business supposed to do so 
they don't put their licenses at risk if something happened? Our 
nurses are driving, handling patients, going to patients' homes, and 
there's a lot of medications in their homes."

The 17 states that permit medical-marijuana use differ in their 
approach to protections for employees who use the drug, making it 
difficult to compare the response of Arizona's employers with those 
in other states.

Arizona has some of the strongest protections for patients, said 
Karen O'Keefe, director of state policies at the Marijuana Policy 
Project in Washington, D.C. Maine and Rhode Island provide similar 
employment protections for patients, she said.

But while the medical-marijuana law protects employees, a later law 
created a work-around for some employers. In 2011, the Legislature, 
with strong backing from the business community, passed a measure 
intended to strengthen employers' rights related to medical 
marijuana. The law amended the state's drug-testing statutes and 
could help shield businesses from lawsuits if they fire workers who 
are under the influence of medical marijuana or other prescription 
drugs while on the job.

Attorney David Selden, who wrote the law, said it was intended to 
give employers more tools to take action against someone they believe 
is impaired based on conduct. The law allows employers with a 
qualifying drug testing policy to reassign or lay off workers who 
take such medications if they have a job with possible safety risks. 
It also defines symptoms of impairment.

Officer Carrick Cook, a state Department of Public Safety spokesman, 
is trained in recognizing signs of drug-related impairment. With 
marijuana, he said, employers should look for bloodshot or watery 
eyes, shakiness, burn marks around the mouth from smoking and poor 

In Arizona, employment attorneys report that corporate clients and 
mom-and-pop shops are updating employment manuals and drug-testing 
policies to address expectations for workers in safety-sensitive 
jobs. Businesses are also seeking direction from attorneys, insurance 
companies and regulatory agencies to figure out if they can insure 
and employ workers who use medical marijuana.

Human-resources managers are learning how to spot fake 
medical-marijuana cards. The state-issued cards look similar to 
driver's licenses. And businesses that receive federal funding - such 
as Medicare in the case of the Cottonwood hospice - are trying to 
determine if they can hire workers who use medical marijuana and 
continue to receive federal funding since marijuana is still illegal 
under federal law.

John J. Balitis Jr., an employment attorney at Fennemore Craig, said 
employers are most concerned about safety risks posed by impaired workers.

"You have employers now poised for seeing an increase very soon in 
active medical marijuana users in the workplace," said Balitis. "Even 
though these cards have been floating around out there ... now that 
marijuana is going to be available for them to buy, we just naturally 
conclude that you're going to have more people in the workplace using 
this drug."

The state has granted more than 31,000 people permission to ingest 
medical marijuana to treat conditions such as chronic pain, glaucoma 
and cancer. Most are allowed to grow their own marijuana until 
dispensaries open, which could happen within the next few months - or 
never, depending on the outcome of a high-profile court battle 
pending in Maricopa County Superior Court.

In the meantime, more than 200 businesses and government agencies 
have registered to check on their workers' status as possible 
medical-marijuana patients through a state Department of Health 
Services database. That database allows employers and law enforcement 
to verify whether individuals are legally participating in the 
medical-marijuana program.

In order to protect cardholders' rights, the database only allows 
employers to verify a medical-marijuana card identification number, 
said DHS Director Will Humble. Employers cannot search the database 
by employee names.

Employers must rely on workers to report their use of medical 
marijuana and provide the identification number for them to check. 
Or, employers can wait for drug tests to come back positive and then 
ask employees about their marijuana use, attorneys said, so they 
don't violate privacy-protected health provisions.

Arizona's medical-marijuana law required state health officials to 
create the database for law-enforcement officials. The Legislature 
later granted employers access. California has a similar system. In 
Colorado, only law enforcement can obtain verification. through a 
public-records request, obtained a list of companies and agencies 
that have accessed the database and attempted to contact dozens of 
the employers. Many did not want to talk.

Businesses that have accessed the database include 
health-care-related institutions such as Scottsdale Healthcare and 
Life Line Ambulance Service Inc., hotels such as the Sheraton Phoenix 
Downtown and the Westin Kierland Resort & Spa and corporations like 
Freeport-McMoran and is also on the list.

Nick Smith is president of the Phoenix-based HR Betty, which performs 
human-resources functions and handles payroll for more than 100 
businesses. He said HR Betty uses the database to ensure potential 
hires or longtime employees who have medical-marijuana cards "are not 
working in a safety-sensitive area that could cause harm for others."

Among the examples he cited were employees "working with knives in a 
restaurant" and those "working with machinery or working on a crane 
or a lift or anything like that."

But the system isn't perfect. Smith said he still relies on employees 
to disclose their medical-marijuana use.

Daniel Cassidy is owner of Sunnyside Window Tinting in north Phoenix 
and a medical marijuana patient. He isn't concerned about hiring 
other patients, he said, and is only interested in knowing whether an 
employee is using marijuana "to cover our own butts."

"I would not hold it against someone if they were a patient," Cassidy 
said. "It wouldn't benefit them, and it wouldn't hurt them."

Some business owners like real-estate agent J.P Librera signed up for 
the database to ensure that an employee was actually a patient.

"I don't have any concerns at all, especially in my line of work, as 
long as it's being used responsibly," the Marana businessman said.
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MAP posted-by: Jay Bergstrom