Arizona’s New Legislative Prescription For Employer Medical Marijuana Ailments

LEGAL UPDATE

Fisher & Phillips LLP
attorneys at law
Solutions at Work®
Arizona’s New Legislative Prescription For Employer Medical Marijuana Ailments

Employers in Arizona exhaled a sigh of relief as Governor Jan Brewer
signed a new law Friday, April 29, 2011. Among other things, the
new law protects employers who take action against employees
suspected of working while impaired by marijuana or other prohibited
substances.
While the new law seeks to protect employers from all unlawful drug
use in the workplace, the law was a clear, direct, response to Arizona’s new
Medical Marijuana Act (MMA) passed by popular initiative this past
November. The MMA, adopted by a slim margin of just over 4,000 votes,
included employment protections for those authorized to use medical
marijuana under the new Act. It also created serious workplace safety
concerns for employers.
Provisions Of The Medical Marijuana Act
The MMA expressly prohibits employers from discriminating
against registered medical marijuana users and cardholders in making
employment decisions. The language in the MMA is so broad that it
generally prohibits employers from taking action in most cases against
medical marijuana users who test positive for marijuana metabolites
in routine drug screening tests, absent other evidence of on-the-job
impairment.
While employers still may prohibit marijuana use and possession in
the workplace and can discipline or terminate those impaired by
marijuana in the workplace under the MMA, the Act has left many
questions unanswered. When, for instance, could employers conclude
that an individual is “impaired” and take action? And, could employers
transfer medical marijuana users from safety-sensitive positions?
Clarifications Under The New Law
The new law answers many of these questions, and provides
employers with several protections against claims of wrongful termination
and discrimination when taking action against those using marijuana or
other prohibited substances. First, the new legislation defines
“impairment” broadly. This includes any indicia that drugs or alcohol
“may decrease or lessen the employee’s performance of the duties or tasks
of the employee’s job position.” Symptoms affecting speech, appearance,
clothing, odor, behavior, and many others, may be relied upon in
concluding that an employee is impaired. Just as significant are the “safe
harbors” for employment actions based on the good faith belief of prohibited drug use and possession. You may discipline an employee or
take other employment actions if you have a reasonable good faith belief
that the employee used or possessed drugs in the workplace or was
impaired in the workplace.
Additionally, the new law permits employers to regain control
over safety-sensitive positions. You may remove employees from
safety-sensitive positions based on the good faith belief that the
employee is using a drug, including prescribed medications like medical
marijuana, if the drug could impair the employees’ ability to perform their
job duties.
What Should Employers Do?
These new protections are not unlimited. The law suggests that
employers may only receive these protections if they adopt formal drug
and alcohol policies compliant with Arizona law. Furthermore, you will
still face independent obligations under the Americans with Disabilities
Act and other laws, and should always evaluate employee medication
issues on a case-by-case basis before taking any adverse employment
actions.
To maximize your protections under this new law, our advice is that
you should revisit your drug and alcohol policies, consult with legal
counsel, and train supervisors to identify signs of impairment.
If you have questions about this new law or the MMA please
contact your Fisher & Phillips attorney or any attorney in our Phoenix
office at 602.281.3400.


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