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8/18/2012 6:39:00 AM
Employers have right to access medical marijuana database

Howard Fischer
Capitol Media Services


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?

Think again.

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.

Taylor Waste

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Reader Comments

Posted: Monday, January 7, 2013
Article comment by: Rex Ward

I was fired recently in the state of Indiana because some teenage girl I work with that is a server at the resturaunt I lost my job at told my boss that I was an avid pot smoker "at home". My boss forced me to resign then told me to come back in thirty days once I was "clean". He didn't drug test me at all, and I lost my fulltime job and the ability to pay my bills and rent, and even afford a christmas present for my loved one all because of a rumor. Is this wrongful termination? Is this defamation of character or even slander for that matter? I really need helpful advice, and I feel as I have been wronged, seeing how I was a dishwasher at Pizza Hut, and I wasnt even tested, but let go for a rumor.

Posted: Monday, August 27, 2012
Article comment by: Always leaving out the FACTS.

MJ,

You forgot . . .

Politician
Teacher
Doctor
Lawyer
Business Owner
Police Officer
Fire Fighter

and they pay a whole lot more than your list.


Posted: Saturday, August 25, 2012
Article comment by: M J

Pot Smokers
If you are worried about the taking the pee test, then you are in luck. There are many lucrative opportunities out there where you do not have to be tested. Jobs like:
landscaper
burger flipper
dog walker (don't forget the baggies)
dish washing
bagging groceries
outdoor toilet cleaner
and I am sure that I missed more then a few other golden opportunities for you. Stay stoned - peace out.


Posted: Thursday, August 23, 2012
Article comment by: Still yapping

Where is your PROOF, Waka waka.

I aint gonna take some anonymous posters word for it.

You have been wrong about so many other things.

Funny the local nurse with a MJ card who was fired got a $5000 settlement.


Posted: Thursday, August 23, 2012
Article comment by: Waka Waka

@ Hey Waka waka You are WACKO

re: IBM - you reference the employee manual - this only applies if you are already employed. IBM does pre-employment drug testing.

re: Steve Jobs - whatever he did - Apple has a pre-employment drug test as do all the high-tech companies.

Further - having a state MMJ card is zero protection. See
http://seattletimes.nwsource.com/html/localnews/2014352603_marijuana28m.html



Posted: Thursday, August 23, 2012
Article comment by: Road Runner

Follow the money.

Governor Voldemort in Florida passed drug testing walfare recipients with good reason. He was the CEO and founder of the drug testing company, he put the shares in his wife's name when he stepped down to become Governor and profitted from it until the courts shut it down as unconstitutional search and seizure.


Posted: Wednesday, August 22, 2012
Article comment by: Hey Waka waka You are WACKO

IBM does not drug test to hire, only if "IBM has reasonable suspicion." You must come in under the influence.

http://www-03.ibm.com/employment/us/newhire/pdf/Drug_Free_Workplace_Act_of_1988.pdf

It is well known that Apple's Steve Jobs dropped acid.

http://www.dailymail.co.uk/news/article-2098925/FBI-reports-Steve-Jobs-did-LSD-pot-questionable-moral-character.html

Anything else you care to lie about? I would suggest you do your research before making such stupid statements. A fact is not rumor, gossip or conjecture.


Posted: Wednesday, August 22, 2012
Article comment by: Waka Waka

@Tom Babbitt

Your response is ludicrousness.

You are saying that the thousands and thousands of technical employees at Apple, HP, IBM, Etc, etc did not have to go thru a pre-employment drug screen?
Ether that or they are, as you say, without talent. How disingenuous is that!

100% of these employers drug screen as a condition of the employment offer.

This is a condition imposed by the Insurance company. Did you know that? To obtain favorable rates they must certify as a "Drug Free" company - and to do that, everyone (except the Officers) get to line up.


Posted: Wednesday, August 22, 2012
Article comment by: Only the sun is bright here!

Waka Waka,

You don't know many companies then.

No one on Wall Street is tested and that includes the "too big to fail" banks. I worked for an International corporation in 15 countries, employees were not tested. Actually I have never been tested in my life . . . and that includes working at McDonalds, Motel 6, and Walgreens as a kid. Was not tested at a large supermarket chain. Not tested at American Greetings.

People I know who smoke pot, quit for a few months, get a job at a company that does test and then begin again.

There is no random drug testing at Walmart, I know people who have worked there for years and only took the test when they started, same at Home Depot.

I have friends in the IT business, worked in Las Vegas, California and now Oregon, they were never tested. I just called to catch up and ask.

They don't test teachers, doctors or lawyers. They don't test politicians. Do they test police officers? I don't know. I hope they test truck drivers, but then they abuse caffiene, another legal drug.

Drug testing is expensive and pretty much doesn't do anything but weed out a hard core drug user who can't quit for a short while, like maybe a meth user? Drug testing is mostly done at low paying, no skill jobs.

Marijuana is not a dangerous drug and easy to quit in order to get a job. Lots of people drink a beer after work, some drink a six pack or a case, I would rather work with the marijuana user quite frankly. Drunks have mood swings, are prone to accidents and can be downright nasty.


Posted: Wednesday, August 22, 2012
Article comment by: Tom Babbitt

@ Waka Waka
No person of and talent would ever let themselves be drug tested for a job. Companies don't own people, people own companies.

P.S. People don't have to be at peak performance to satisfy the paranoia of shut-ins that's what insurance is for.


Posted: Tuesday, August 21, 2012
Article comment by: Fare Play

The thing that is most discriminatory about the use of medical marijuana is that it will show up in a urine test two months later because it is actually assimilated into the system just like food. In other words it is not considered a poison to ones own body the same way as alcohol is. Someone could be a regular alcoholic and not test positive for being under the influence 48 hours later, the same with heroin or cocaine or speed or crack or methamphetimes. Just because someone smokes pot 48 hours earlier and test positive, doesn't mean that person is still under the influence. Pot has been proven to have a lot of benefit for people suffering from parkinsons disease, migraine headaches, cronic pain, inability to sleep from things like spinal stenosis, etc etc etc. Almost every doctor will admit that there are legitimate uses for medical marijuana.

No I don't believe someone that is a long haul truck driver should smoke and get behind the wheel because THC does cause drowsiness when used. I do know that there are litmus tests available that can be used to determine if a person has used pot in the last 24 hours instead of a urine or blood test that will show the presence of THC from as far back as two months earlier. It is the type of testing that needs to be addressed and changed for marijuana use because it stacks the deck against the legitimate user. Pot is not as bad as alcohol yet we have drunks driving all the time and we still don't stop them when they pull out of the bars parking lots.

This country and its people have become so brainwashed they can't see there needs to be compromise and real freedom of choice when it comes to peoples drug of choice. Drugs is not a dirty word, every nationality, country and society around the globe since the beginning of time has used drugs, from alcohol to tobacco to marijuana and so on and so on. What we have done as a society has made no sense at all to me and we have declared alcohol and all of its various flavors the only legal drug besides tobacco and it in turn kills people by the millions across the globe every year. If it doesnt kill people behind the wheel, it destroys bodies from the inside out. Pot has never had as devastating effect on the body as alcohol nor does it render the user unable to stand or talk coherantly like alcohol does. People die from alcohol abuse but you all know that isn't the truth about pot. Where is the compromise and freedom of choice this country was based upon? Pot only became illegal in recent history and it was because of prejudice and ignorance by the general public. Before that our forefathers requested people to grow pot 'hemp' for its beneficial uses. It was the cotton industry that felt threatened by hemp and they used hollywood and stupid movies like' reefer madness' and the prejudices of other people, by pointing out how many blacks liked pot that convinced congress to declare pot illegal. Study your history about pot and you will realize it was lobbyists ignorance and manipulation of the general public, that caused it to be made illegal.


Posted: Tuesday, August 21, 2012
Article comment by: AZ GIRL

No one should be impaired on the road or at work, period. The trouble is that with THC your blood and urine show evidence of use for many, many days afterwards.
A few years ago, I was having severe back pain, and I mean severe. There were times where I would literally fall down from the spasms. I went to my doctor and the first thing she did was pull out a prescription pad and write a script for the prescription pain pill Hydrocodone. This was my first experience with this drug and I was given no warnings as to behaviors, except the standard to be careful operating heavy machinery. Well, I took my pill as instructed by my doctor and quite frankly,I have never been so impaired in my life, including when I used to smoke marijuana just for fun.
After 1 day, I decided to NEVER take one of those pills anywhere near my job again, even though I did not drive or operate machinery for work. I do not think that anyone is saying that it will be OK to get stoned and drive or go to work, but also its not OK to fire or refuse to hire someone for being a registered user. Remember that the registered users are more likely to be the responsible users as well.
Let's end this prohibition on marijuana. It is not for everyone, but if it helps someone, why are they not allowed to use it?


Posted: Tuesday, August 21, 2012
Article comment by: Boogie Woogie

If you need medicinal thc to get thru the day at work without pain then perhaps you should seek a different type of employment.
In all seriousness, how many of you want a semi-driver stoked out on "weed" driving an 82,000 lb truck(loaded) on the same road as you and your family?
Poor guy, has knee trouble- old football injury from highschool. So he pops three pain pills and takes a couple tokes of the mean green and his pain goes away....then he gets behind the wheel. At the same time you're picking up your kids from school...on the same road..coming right at you.
Better yet, the mechanic working on the brakes of your car...decided his back hurt in the AM before work so took a couple quick puffs before coming in. YOUR car is the first one he is working on.
Still ok with that kind of freedom?
Everyone who does any drugs say they are "Fine". Because well...you're on drugs.
Same as a guy tanked out on a 12 pack of beer driving is, "Fine". Right?


Posted: Monday, August 20, 2012
Article comment by: Waka Waka

Tom Babbitt states...
"Nobody drug tests the computer programmer."

He has obviously never been in the business. Companies in the IT biz have been testing prospective employees since the late '90s.

I know of NO companies of any size that do not presumptively assume that a prospective employee is not an abuser.


Posted: Sunday, August 19, 2012
Article comment by: common sense

With this database that originally was used only to identify peoples' driving records or people on parole or probation or had outstanding warrents. Now apparently this all encompassing database identifies every aspect of everyones personal life including doctors prescribed medications. According to this database there doesnt even need to be a field sobriety test administered by a policeman to declare someone under the influence.The law seems to have stacked the deck against the general public and eliminated the right to anyones personal privacy. You now can be found guilty or impaired by any cop simply by running your drivers license, the field sobriety test is just a meaningless formality, and whether or not you get arrested and or ticketed is solely at the discretion of the officer.

What kind of a country have we turned into? Justice seems to be only for the lawmakers the police agencies and their families and friends.



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