Initiative would protect medical use of pot - East Valley Tribune: Arizona

Initiative would protect medical use of pot

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Posted: Thursday, May 14, 2009 9:41 pm | Updated: 3:07 am, Sat Oct 8, 2011.

An initiative drive launched Thursday would give some people who are prescribed marijuana and test positive for the drug on the job the same legal anti-discrimination protections against getting fired as women and minorities.

The measure, dubbed the Arizona Medical Marijuana Act, would allow doctors to essentially prescribe marijuana to patients who are suffering from any one of a specific set of conditions. It also would allow creation of a network of nonprofit shops that would sell marijuana to those who have those prescriptions and allow those not within 25 miles of a shop to grow their own.

Backers need to gather 153,365 valid signatures by July 1, 2010, to put the measure on the ballot that year.

If they are successful, it will be the fourth time Arizonans get to decide whether there are legitimate medical uses for the drug.

Voters approved a measure in 1996 allowing doctors to prescribe otherwise illegal drugs to seriously and terminally ill patients, only to have key provisions repealed by the Legislature.

That repeal was overridden by voters in 1998. But the wording of the measure ‑ requiring an actual written prescription ‑ made it useless after the U.S. Drug Enforcement Agency threatened to revoke all prescription-writing privileges of any doctor who wrote such an order.

A 2002 measure sought to get around that by making a simple written recommendation by a doctor sufficient. But that initiative failed for several reasons, including a provision that would have made the Department of Public Safety the state's largest marijuana supplier.

This new plan, modeled after similar laws in other states, also requires only "written certification'' from a doctor to get up to 2.5 ounces of marijuana every two weeks. The drugs would come from nonprofit dispensaries, though the question of where they get their plants or seeds is not addressed.

But campaign manager Andrew Meyers said there are differences in this plan designed to make it less subject to abuse than the California model, like distance restrictions of these shops from schools.

There also is a list of medical conditions that could be treated with marijuana, ranging from glaucoma and AIDS to chronic or debilitating conditions that lead to severe and chronic pain, severe nausea, seizures or severe and persistent muscle spasms.

What it also contains, though, are anti-discrimination provisions, including one that says an employer cannot make hiring, firing and disciplinary conditions based on a person's status as the holder of a medical marijuana card. Potentially more significant, that protection extends to someone who tests positive for drugs unless the person used or possessed marijuana on the job or was "impaired'' during work hours.

Pima County Attorney Barbara LaWall said the problem is proving what constitutes impairment.

With alcohol, she said, it's easy: Tests determine a blood alcohol content. And there are standards in both state and federal laws that determine what level constitutes impairment.

That doesn't exist for marijuana.

Attorney Don Johnsen, who specializes in labor law, said the language, similar to laws that prohibit discrimination on race, religion or gender, will lead to a lawsuit every time a company fires or refuses to hire someone with a medical marijuana card if he or she tests positive. Johnsen said each side will hire medical experts to argue to a jury whether a specific reading of a metabolite of marijuana shows the person was impaired.

Meyers agreed the question of what happens to a worker who tests positive "becomes a question for the courts.'' But Meyers said he's not concerned about employer rights in these cases.

"We don't believe that someone that is using a medication that their doctor recommends to them should be fired because they're following a doctor's advice,'' he said. Meyers said marijuana should not be treated different than other prescriptions.

Johnsen, however, said that's precisely the effect. He said employers are now free to fire people for virtually any reason at all, including showing up at work under the influence of other legal drugs.

Another provision says schools could not refuse to enroll and landlords could not refuse to rent to those entitled to use medical marijuana unless they would lose dollars or licensing because of federal laws.

And the use of marijuana for medical purposes could not be taken into account in child custody or visitation disputes, nor would it be evidence of neglect or child endangerment "unless the person's behavior creates an unreasonable danger to the safety of the minor as established by clear and convincing evidence.''

Nothing in the Arizona proposal, like those approved in other states, would immunize anyone from prosecution under federal drug possession laws. But the record so far has been that federal agents have shown little interest in going after individuals for possessing small amounts of marijuana.

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