AZ Medical Marijuana and Pre-Employment Drug Test (lawyer, income)

[OrangeCar]

I know that AZ's medical marijuana law is written so that employers cannot fire, nor not hire, someone simply because they tested positive for marijuana use if they have a valid MMJ card. The exceptions being safety sensitive positions or if the employer would lose federal dollars.

However, in practical terms, it seems that a person realistically has no recourse if an employer thumbs their nose at the state law and rescinds a job offer. I'm skeptical that there are lawyers out there willing to work on contingency for this matter, which leaves the person having to cough up thousands of dollars in legal fees, and possibly not get anything for it. Which doesn't even get into the domino effect of trying to quickly find a replacement job, etc.

So...I'm wondering if anyone here knows anyone that has a AZ MMJ card, drug tested and showed positive, and either still got the job, or didn't. I'm very eager to hear any real-life experiences. In my situation, it would be a professional office job (i.e. not a safety sensitive job), but I'd like to hear experiences from any type of industry.

A while back I read that a medical review officer (MRO), which I believe is supposed to be a licensed physician, at the drug test lab calls the candidate to ask if there's a good reason why they showed positive for a substance. Upon providing a valid AZ MMJ card, the MRO is supposed to report back to the employer that no drugs were found. But then I found a website for a drug test lab that says they report everything to the employer.

I understand that others' experiences may not apply to me, but I would still find them useful. I also understand that people are all over the map with their MMJ beliefs. Some people worship it, others are still stuck in Nixon-era reefer madness thinking. So if we can keep this thread to strictly people's experiences, or the experiences of others that they trust, that would of course be great.

Thanks.

[wase4711]

well, if legalization is on the ballot this November, I cant imagine it wont pass, and that would change everything..

Not sure if it is on the ballot though..

[mrshowtime3]

Its not likely to make the ballot this year and would never pass in a non presidential election year. 2020 would be the earliest.

[cactusland]

It didn't pass last time because it was poorly worded and vague as to how the 'board' it created exactly determined how it would be managed in the state.
It looks like there is a good chance it will re-appear on the 2018 ballot in November as per Ballotpedia: (https://ballotpedia.org/Arizona_Mari...ive_%282018%29)

[KurtAZ]

Keep in mind, an employer can write their own drug policies. They don't have to tell you why they are not hiring or firing you. Just that you weren't selected for the position or that they are "letting you go". Just because a state legalizes MJ, doesn't mean your employer needs to keep you if you decide to start using.

[AZDesertBrat]

Originally Posted by KurtAZ

Keep in mind, an employer can write their own drug policies. They don't have to tell you why they are not hiring or firing you. Just that you weren't selected for the position or that they are "letting you go". Just because a state legalizes MJ, doesn't mean your employer needs to keep you if you decide to start using.

This is true. I believe it will be left up to the employer. I only know of one person at work who has a medical card, tested positive and kept his job. He was changing positions to one that it was required he take the test and he told HR up front. He's still working there but he never ever goes to work 'stoned'. He does the edibles and only at night before bed.

[OrangeCar]

Originally Posted by KurtAZ

Keep in mind, an employer can write their own drug policies. They don't have to tell you why they are not hiring or firing you. Just that you weren't selected for the position or that they are "letting you go". Just because a state legalizes MJ, doesn't mean your employer needs to keep you if you decide to start using.

Every job I've ever had, the drug testing phase comes after an offer has been extended. If an employer rescinds an offer after finding out the candidate uses medical marijuana, it would be painfully obvious why the employer did so. State law overrides a private employer's policy.

So that leaves the scenario of the employer hiring you, then purposely firing you after a short time in the hopes of hiding behind "at will employment". But in that case I think it's easily arguable that the employer was trying to skirt state law regarding MMJ. If an employer is deposed or on the stand, a defensive answer of "we don't have to answer" looks a lot like guilt.

It's surprisingly difficult to find a straight answer on the internet to how drug testing goes. I've read that the drug test lab tells the employer everything was negative if you provide the lab with a valid MMJ card number. In which case, all of the above is moot. But if the lab tells the employer that the result was positive, that's where the big unknown begins. Which is weird because over 160,000 residents have MMJ cards, and presumably many of them switched jobs since acquiring their card. Yet the internet is nearly void of anyone's actual experiences.

Sigh... Oh well, here's hoping for (overdue) national legalization.

Thanks to all that responded though.

[KurtAZ]

It would be hard to find a lawyer who is going to prosecute an MMJ discrimination case against an employer who rescinds an offer of employment due to a positive drug test. There are a ton of factors that go into it but it pretty much says: you can't discriminate BUT...if you would lose federal funding/grants, feel that the job requirements would put the employee or other employees at risk, etc. they can get around it. Besides, what possible upside is there to suing someone that didn't hire you? From all accounts it would be pretty cost prohibitive (cost of litigation vs. possible ruling/award to the Plaintiff) and most lawyers won't take the case. If an employee is caught using, possessing or under the influence on the job...they can be fired. If there is an odor, appearance, carelessness on the job, they can be fired. I am sure most of this applies to THC MM since the CBD variant does not have any of the euphoric effects of traditional MJ...i.e. hemp vs. marijuana...and wouldn't have any actionable side effects.

Long story short...as with most labor law in AZ...the employer can't discriminate but there are ways around it if employing a certain individual will damage their business.

[OrangeCar]

Originally Posted by KurtAZ

It would be hard to find a lawyer who is going to prosecute an MMJ discrimination case against an employer who rescinds an offer of employment due to a positive drug test. There are a ton of factors that go into it but it pretty much says: you can't discriminate BUT...if you would lose federal funding/grants, feel that the job requirements would put the employee or other employees at risk, etc. they can get around it. Besides, what possible upside is there to suing someone that didn't hire you? From all accounts it would be pretty cost prohibitive (cost of litigation vs. possible ruling/award to the Plaintiff) and most lawyers won't take the case. If an employee is caught using, possessing or under the influence on the job...they can be fired. If there is an odor, appearance, carelessness on the job, they can be fired. I am sure most of this applies to THC MM since the CBD variant does not have any of the euphoric effects of traditional MJ...i.e. hemp vs. marijuana...and wouldn't have any actionable side effects.

Long story short...as with most labor law in AZ...the employer can't discriminate but there are ways around it if employing a certain individual will damage their business.

For an office job with a private employer that receives no federal funding, the discriminating employer wouldn't have a leg to stand on to defend their choice to not hire someone because they tested positive for thc. They'd only have cause if the employee showed signs of being high on the job. But that's no different than being drunk on the job, stoned from opioids, etc. The effects of thc don't last very long, so using after work wouldn't impair someone the next day.

As to why I'd consider suing an employer that breaks state law and rescinds a job offer... By the time I get to the drug test phase, I've already resigned my current job. So now I'd be stuck with no job/income, and no great explanation for future employers why I left my last job without something else lined up. It would look suspicious. My lack of income would be due to the discriminating employer breaking AZ state law. They deserve to be sued.

Agreed on your point that it wouldn't necessarily be easy finding a lawyer. But that's true for a lot of cases unfortunately. That's why I'd much rather know in advance if employers would know how the drug test went, or if the lab keeps it confidential if I provide a valid card. And not all employers would even care but the ones that do won't be forthright about not following the state law. But there's no way for the employee to know until it's too late.

[KurtAZ]

I understand what you are saying, but I think you missed the point I was (hopefully) trying to make. If the employer has a Drug Free Workplace standard (meaning all you listed including alcohol and tobacco) Federal Law...which supersedes State Law...would allow an employer to not hire you. There is a "Good Conscience" clause in State Law that would be an out for the employer if something did go wrong for some reason, but you would have to be a pretty talented individual for a business to take the risk of possible civil litigation if something went wrong due to THC use.

The point I was trying to make is that there are multiple avenues within AZ State Law that would allow an employer to rescind an offer of employment up to and not including to legal declarations in the Offer Letter itself. If the Offer Letter actually states they are a Drug Free Workplace, they can deny employment. I knew there were certain healthcare systems in the Valley that would rescind employment offers if a candidate popped for tobacco usage on the grounds that it would increase their health care coverage premiums. They have since stopped this practice but...point is...if they want to deny employment, they will.

As far as suing the employer? You would have to retain a lawyer($$$), pay their hourly to put together a discrimination lawsuit (more $$$), file said lawsuit, get on the docket in a Civil Court, Go through the hearings, etc. and IF you found the employer guilty of discrimination...maybe get enough to cover your legal fees? Even in this New Times article, the only plaintiff that won a case had to prove the employer was discriminating against her for epilepsy, not the THC use.

Anyway...not an expert on this but if you are looking to be litigious regarding an offer of employment...my guess is it would be an uphill battle.