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. | User database
The Arizona Department of Health Services allows employers and law enforcement to check medical-marijuana cardholders. Find a complete list of employers who have accessed the state database at azcentral.com by going to azdatapages.com/marijuana/.
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 The Arizona Republic. "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 medical-marijuana 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 settlement.
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 coordination.
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.
The Arizona Republic, 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 GoDaddy.com. The Arizona Republic 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.
by Yvonne Wingett Sanchez - Aug. 26, 2012 The Republic | azcentral.com
Medical pot tests boss-worker relations
