Prop. 203 a rude awakening for employers - East Valley Tribune: Opinion

Prop. 203 a rude awakening for employers

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Posted: Wednesday, September 29, 2010 11:09 am | Updated: 8:12 pm, Sun Oct 3, 2010.

If Proposition 203 passes in Arizona, employers can say goodbye to the drug-free work place, and hello to employment for life.

Prop. 203 is called medical marijuana, but it’s really legalization. In other states with this law, anyone can get a marijuana card and smoke pot legally.

According to records seized by the Drug Enforcement Administration from 3,636 dispensaries in San Diego from October 2005 to July 2006, only 2 percent of cardholders had serious illnesses like AIDS, cancer or glaucoma. The other 98 percent cited illnesses such as insomnia, muscle spasms, anxiety, headaches or back/neck/post-surgical pain. Overall, 72 percent of those users were under the age 40.

The problem for employers isn’t just that Prop. 203 effectively legalizes marijuana, but it also gives marijuana cardholders special rights. The “Discrimination Prohibited” section of Prop. 203 states:

“An employer in Arizona may not discriminate against a person in hiring, cannot discipline, or terminate because of the person’s status as a cardholder or because they tested positive for marijuana components or metabolites, unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment.”

No one can be fired or even sent home for the day unless clearly impaired, and the burden of proof is on the employer. And Proposition 203 gives employers no guidelines and never defines impairment. It’s one person’s word against another’s, and marijuana cardholders are a protected class.

Proposition 203 not only prohibits employers from “discriminating” against medical marijuana users, it also prohibits employers from taking adverse action without providing a specific remedy to the employee. In other words, you’re not supposed to fire a marijuana user, you can only correct their behavior.

Marijuana is known to destroy motivation, but if the employee is performing poorly at work because they smoke marijuana, your hands are tied. Proposition 203 creates a whole new tort claim for wrongful termination, which could include punitive damages.

Adding to the problem, marijuana users get the confidentiality of any medical patient. As an employer, you can’t ask if they’re a marijuana cardholder. The confidentiality of patients with medical marijuana cards is protected. Proposition 203 doesn’t even allow a medical review officer to authenticate the medical marijuana card on behalf of an employer. This means an employer has no way of verifying the employee’s claim that he or she has a permit to use medical marijuana. But if they do have a card, then they have certain rights the employer must respect.

However, the biggest threat to Arizona businesses will be liability. Even if the job includes operating a motor vehicle or heavy equipment, employers can’t ask if the employee uses medical marijuana. But if an employee comes to work high and injures someone or damages property, the employer is responsible.

This sounds like an excerpt from Catch-22, but come Nov. 3 it might be state law. The polls are running 60-40 in favor of passing Prop. 203 because most people believe the story that it will only give marijuana to a small handful of cancer patients. And, amazingly, most of Arizona’s politicians and business owners haven’t lifted a finger in opposition. Perhaps marijuana has sapped their motivation as well.

Doug Hebert is a board member for the Partnership for a Drug Free America, and a steering committee member for Keep Arizona Drug Free.

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