By: Jennings, Strouss & Salmon, P.L.C.
Governor Brewer has just signed legislation that will provide assistance to employers in their implementation of the Arizona Medical Marijuana Act (“AMMA”) in the workplace. The new law amends existing drug testing statutes (A.R.S. § 23-493 et seq.) to make it easier for employers to discipline employees who use marijuana, even when they are cardholders under the AMMA. The new law also allows employers to use the electronic registry to verify an employee’s cardholder status.
The AMMA allows limited use of marijuana for medicinal purposes without threat of criminal or civil penalty under Arizona law. It does not, however, alter marijuana’s status as an illegal drug under federal law. The AMMA contains a very broad anti-discrimination provision that might prove challenging for many employers. Specifically, it prohibits employers from discriminating against a prospective or current employee who is a registered cardholder because of (1) the person’s status as a cardholder, or (2) as a result of a registered qualifying patient’s testing positive for marijuana through a drug screening. Although the AMMA created an exception to this anti-discrimination provision for employees who used, possessed or were impaired at the workplace or during the hours of employment, the AMMA did not define “impairment” or “under the influence.”
Arizona’s existing drug testing statutes already provided employers with some protection against lawsuits, but the new law expands that protection to account for the AMMA. The new law adds two new provisions that may help protect employers from litigation. First, it protects employers who take disciplinary action based on a good faith belief that an employee had an impairment while working on the employer’s premises or during hours of employment. The law very favorably defines “impairment” to include symptoms that a prospective employee or employee may be under the influence of drugs or alcohol that may decrease or lessen the employee’s performance, including the person’s speech, appearance, odor and unusual behavior. The new law also defines “current use of any drug,” and expands the definition of “good faith.” These definitions will provide guidance and assistance to employers dealing with issues under the AMMA and drug testing.
The second new provision protects employers who take action to exclude an employee from performing a safety-sensitive position based on the employer’s good faith belief that an employee is engaged in the current use of any drug if the drug could cause an impairment or otherwise decrease or lessen the employee’s job performance or ability to perform the employee’s job duties. The new law defines “safety- sensitive position” to include a job that includes duties that could affect the safety or health of the employee or others (such as operating a motor vehicle, equipment or machinery or power tools; performing duties at a customer’s location; preparing or handling food or medicine; and working in certain occupations regulated by the professions section of Arizona law), as well as a job the employer designates as a safety-sensitive position.
Employers who have, or adopt, a drug testing policy and program that meet the requirements of Arizona’s drug-testing statute will qualify for these new protections. Therefore, Arizona employers should review their drug-testing policies. If you have questions about this new law or the AMMA and their impact on your workplace, or if you would like assistance with reviewing and revising your policies, our labor and employment attorneys are available to assist you.