Medical Marijuana And Your Drug Free Workplace
By: David
N. Farren, Attorney and Jerrie Martinez-Palombo, M.Ed. SPHR
Arizona's Medical Marijuana Act, (the "Act"), A.R.S. ยง36-2810,
was effective January 1, 2011. Many employers did not know how to
incorporate the Act into their existing drug-free workplace
policies.
The Act prohibits an employer
from discriminating against an employee because he or she is a
registered medical marijuana user, but neither the Act nor the ADHS
regulations issued to interpret and implement the Act provide much
guidance as to what that means or how employers can be sure they
comply with this new law. The Act requires that qualified medical
marijuana patients be registered with the state and issued a
registration card and states that employers may not discriminate
against applicants and employees who are registered card
holders. For example, an employer may not make hiring and
firing decisions or take disciplinary action against an employee
who is a registered card holder unless the employee uses medical
marijuana at work or the employer can show that the employee was
impaired while at work. The practical problem is how can the
employer be reasonably certain that it will be able to show that
the employee was impaired? A misstep could lead to some very
unfortunate legal consequences.
Fortunately, help has arrived. House Bill 2541, which
became effective July 20, 2011, and retroactively applies to April
12, 2011, provides employers with at least some guidance in dealing
with these issues. It is actually an amendment of the
existing Arizona Drug Testing of Employee's Act and
allows "employers to take action against employees who are
believed, in good faith, to be impaired at work due to prescribed,
illegal or synthetic drug use." It also sets out a laundry list of
factors the employer may consider when making that
determination.
House Bill 2541 also includes several new provisions that allow
employers to refuse to place any employee who uses medical
marijuana in a safety sensitive position. Safety-sensitive
jobs are defined as "any job that requires duties or tasks that
could affect the safety or health of the employee performing the
task or others." It also allows employers to remove any employee
who the employer believes in good faith is using any drug,
prescribed or otherwise (subject, of course, to ADA requirements),
if the drug could cause impairment or negatively impact the
employee's job performance. This includes medical marijuana.
Another important provision of House Bill 2541 is to allow
employers to take disciplinary action against any employee based on
its good faith belief that the employee is impaired while at work.
"Good faith is defined as "reasonable reliance on fact, or that
which is held out to be factual, without the intent to deceive or
be deceived and without reckless or malicious disregard for the
truth."
It is important for employers to know that the new medical
marijuana law allows employers to use a medical marijuana
verification system to verify a registry identification card for a
new applicant before extending an offer of employment. It
also allows employers to verify registration cards of existing
employees. More importantly, the new law protects an employer from
liability when it takes disciplinary action against an employee
under the good faith belief that the employee was impaired, used or
was in possession of any impermissible drug while at work.
Now don't get too excited. Even though employers have been
given more guidance about complying with the Act, the Act itself
and its ultimate impact on employers and employees have been called
into question. In late May, Governor Jan Brewer filed a
federal lawsuit requesting a declaratory judgment to determine if
the Arizona Medical Marijuana Act is in conflict with federal laws
prohibiting the use, possession or sale of marijuana in any form or
for any reason. The lawsuit was necessary because of threats
being made by the U.S. Attorney to enforce federal laws
notwithstanding Arizona's new medical marijuana law. Until
that matter is resolved, we recommend that employers seek legal
counsel to ensure that their drug-free workplace policies and drug
testing policies are in compliance with existing laws or before
taking any adverse employment action against any employee who is
suspected of drug use.
To read more about Arizona Medical Marijuana Act click the below
link:
http://www.azdhs.gov/medicalmarijuana/
To read House Bill 2541 click the below link:
http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/50leg/1r/summary/h.hb2541_04-21-11_astransmittedtogovernor.doc.htm&Session_ID=102
About the authors: David Farren is an
attorney at the Phoenix law firm of Jaburg Wilk and works in
employment law, antitrust, and commercial litigation. He can be
reached at 602-248-1048 or at dnf@jaburgwilk.com.
Jerrie Martinez-Palombo is a human resource director and frequently
contributes to employment law articles. She is SPHR certified
and holds a masters degree in Human Relations.
This article is not intended to provide legal advice and
only relates to Arizona law. It does not consider the scope
of laws in states other than Arizona. Always consult an
attorney for legal advice for your particular situation.
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