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Employers have right to access medical marijuana database
8/18/2012 6:39:00 AM
By Howard Fischer
PHOENIX -- Think you can show up at work with your clothes reeking of marijuana and get away with it just by saying the doctor told you to inhale?
You may not know it, but your boss is entitled to check with the state Department of Health Services to find out if you are, in fact, a medical marijuana user. In fact, the database will even disclose how much marijuana you've bought legally in the last 60 days.
And so far about 170 firms, from small shops through Freeport-McMoRan Copper & Gold and U-Haul International, have signed up to do just that.
Those same firms also can use the online database to check out the accuracy of claims by job applicants who say they can't pass a drug test -- and don't have to -- because they are legally using marijuana.
There also are dozens of police departments that also are registered users of an online database to verify just who is and is not entitled to possess and smoke the drug. And that means officers can quickly tell if those they have stopped are entitled to have that baggie of Dutch dragon, Maui blue or white widow on the seat next to you.
The database is an outgrowth of the voter-approved 2010 law which allows those who have a doctor's recommendation to obtain up to 2 1/2 ounces of marijuana every two weeks.
But the measure also spells out that employers cannot fire or discipline workers solely because they test positive on a drug test. Organizers admitted they inserted that provision after workers with medical marijuana cards in other states were fired and the courts there ruled they had no right to sue for their jobs back or get damages.
That left employers with lots of questions, including how to determine who is entitled to that protection.
The database actually is part of the original medical marijuana law. It currently contains the names of all the approximately 30,000 individuals who so far have been approved to legally buy, transport, possess and use the drug.
But it initially was designed only to be accessible to police who had stopped someone and by the still-to-be-opened state-licensed medical marijuana dispensaries to verify that they can, in fact, sell drugs to the person standing there.
Last year, in a bid to help employers, lawmakers agreed to add them to the list of permitted users. But state Health Director Will Humble said this isn't an invitation for companies to poke around in the private business and health affairs of their workers.
"An employer can't punch in names and push 'enter' and find out if they have (medical marijuana) cards,' he said.
Humble said the system is set up to deal with a situation where an employee fails a drug test for marijuana but says he or she is entitled to use the drug away from work.
"The employer can sign up, get a password, enter the 20-digit number, and verify the card,' he said. "But they can't fish.'
Humble said the same restrictions apply to police and dispensaries: They can find out if a card is valid. But they cannot simply look up names.
If anyone had any doubts about the need to protect employees from discrimination, all they need do is ask Esther Shapiro.
Shapiro, a nurse, was required to submit to a pre-employment drug test last year when she was hired at Verde Valley Community Hospice in Cottonwood. She said she informed the supervisor she was a registered medical marijuana cardholder but did take the test.
The following day, according to Shapiro, the supervisor told her the hospice's insurance carrier considered her too much of a liability because of that status, and she was fired.
Her attorney David Weissman said Shapiro never did get her job back. But in what he said is the first case of its kind in Arizona, the hospice did just cut her a check for $5,000.
He said that provided Shapiro a "sense of vindication.'
Weissman conceded that the settlement sets no precedents. And it remains to be seen exactly how far courts will allow employers to go in firing or disciplining those who use marijuana for medical reasons.
There are limits to those protections.
Cardholders would be mistaken if they hope to parlay the protections of the law into an excuse to go outside for a quick hit of their medication. Smoking or otherwise consuming the drug on company property was never allowed in the 2010 initiative.
In fact, the measure also says there is no protection for employees who show up at work "impaired' by marijuana.
That, however, has been a much grayer area, especially since the original measure never defined exactly what that means.
In a bid to give employers some guidance, attorney David Selden, who represents business interests in labor matters, crafted legislation last year to tighten up that language.
For example, the law now defines "impairment' as symptoms that someone may be under the influence of drugs or alcohol that may decrease the person's ability to perform the duties assigned. But Selden said any employer who intends to drug test a worker still needs to be careful.
"The main thing is to make sure that the decisions being made are based upon observable symptoms and behaviors,' he said.
"Maybe they're not coordinated and slothful and really look 'out of it, not something where you think, 'Do I really want to trust this person doing a job that could endanger others?' ' Selden explained. "You do it based upon that condition, not based upon, 'Oh, gee: I smelled marijuana in his clothes.' '
And that 2011 change also give employers the opportunity to declare certain jobs off-limits to medical marijuana users. It allows companies to designate certain jobs as "safety sensitive.'
Selden said that change covers not just marijuana cardholders but also anyone who may be taking certain prescription medications legally that caution against operating heavy equipment.
Still, employers who never liked the medical marijuana law -- and its personnel action exemptions -- were not able to get everything they wanted last year, even from a Legislature generally considered friendly to business interests.
As originally crafted, the measure would have exempted employers from being sued for taking action if they had a good faith belief that the worker "had consumed (drugs) in the recent past or intended to consume in the near future." That language would even include an employee with a medical marijuana card whose only offense was intending to smoke the drug after going home from work.
Lawmakers removed that language about past or future use.
At the same time they tweaked the language requiring that an employer have information from a "reliable source' that a worker actually used the drugs at work to say that has to be someone who was an actual witness.
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