What can employers do with employees who hold medical marijuana cards? David Weissman, director of RLG Employment and Managed Care Law Department talks about this big issue.

By David Weissman, Director of RLG Employment and Managed Care Law Department

medical marijuana cardsMedical Marijuana and the Workplace – Issues for Employers to Consider:

Now that the Arizona Medical Marijuana Act (AMMA) has survived its latest court challenge and the first medical marijuana (MMJ) dispensary in Arizona has opened its doors, it is important for Arizona employers to consider the impact the AMMA may have on the workplace and to revise their policies accordingly.  First, all Arizona employers should be aware that the AMMA generally prohibits an employer from taking an adverse employment action or otherwise discriminating against an employee based (a) on the employee’s status as a medical marijuana cardholder or (b) solely on positive drug test for marijuana components or metabolites, unless failure to do so would result in the loss of a financial or licensing benefit under federal law.  This does not, however, prevent an employer from taking action against an employee who used, possessed or was impaired by marijuana on the employer’s premises and/or during hours of employment.

Employers should also be aware that the Arizona legislature has amended the Arizona Drug Testing of Employees Act to provide employers with greater protection from claims related to actions taken as a result of employee drug testing and the use of legally prescribed drugs by certain employees.  Of particular note in relation to MMJ use is the provision of the statute allowing an employer to exclude an employee from performing a “safety sensitive position” based upon a good faith belief that the employee is engaged in the current use of any drug, legal or otherwise, if the drug could cause an impairment or otherwise impact the employee’s job performance or ability to perform his or her duties.  While the precise limits of what constitutes a “safety sensitive position” have not yet been tested by the Arizona courts, the statute specifically includes a broad set of activities including the operation of a motor vehicle, equipment, machinery or power tools, repairing, maintaining or monitoring the performance or operation of any equipment, machinery or manufacturing process which could result in injury or damage, performing duties in the residential or commercial premises of a customer, supplier or vendor, and preparing or handling food or medicine.  Employers should note, however, that in order to take advantage of the “safety sensitive position” and other employer-friendly protections of the Drug Testing Act, the employer must have a written drug testing policy/program that complies with certain requirements spelled out by the Drug Testing statute.

Accordingly, in order to best limit liability in light of the AMMA, Arizona employers should carefully review their employee handbooks, policy manuals and other employment policies and practices to ensure that they are in compliance with these new provisions of Arizona law.  In particular, employers should review their written drug testing policies to make sure they include the specific requirements of the Drug Testing statute (or consider implementing a policy, if none is currently in place).  Having a compliant drug testing policy will maximize the employer’s ability to take advantage of the safety sensitive position and other new protections afforded to employers under the law.

To discuss this matter further or any other employment issues you may have, please contact David Weissman at 480-240-5636 dweissman@roselawgroup.com

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December 2012