Wednesday, August 3, 2011

Federal Drug Testing Regs Only A Limited Shield To Transportation Employers From AMMA's Discrimination Ban

In a July 25, 2011 post, I began what I expect to be an ongoing examination of the parameters of the exemption to the Arizona Medical Marijuana Act (AMMA) for employers who would lose a monetary or licensing related benefit under federal law or regulations for failing to discriminate based on marijuana use.  That post concluded that the federal Drug Free Workplace Act applicable to most federal contractors and grantees actually did not conflict with the AMMA or give any employer the right to invoke the AMMA exemption if facing discrimination claims by registered Cardholders.

By far the biggest group of employers who may be able to claim the exemption are those in the trucking, railroad, airline and transit system industries, who are subject to federal drug testing regulations.  Those employers are required to test upon certain occasions that vary with each industry.  The regulations are very specific and flunk those employees who have a threshold concentration of marijuana metabolites in their urine that is no indication of marijuana impairment or recent use.

This is one clear case in which federal regulations require Arizona employers to discriminate against Qualified Patients (QPs) who otherwise would be protected by the AMMA.  The AMMA specifically protects QPs who test positive for marijuana metabolites from discrimination unless the federal exemption applies.  So employers in the regulated transportation industries can take action against a protected AMMA Cardholder on the basis of a positive drug test.

But the only action mandated by the DOT regulations is that the employer remove the employee failing the drug test from safety sensitive positions.  The regulations also state that the employer cannot return the employee to the safety sensitive position until the employee complies with a comprehensive treatment and education program and passes another drug test.

Arizona employers who have to comply with DOT drug testing requirements do not have to fire or otherwise discipline employees who fail drug test.  So the AMMA exemption does not protect the employer who fires or otherwise disciplines a QP for failing a drug test, even if the employer is subject to federal drug testing requirements.

The only real clarity for Arizona employers on the scope of the AMMA exemption is that a QP's prescription for medical marijuana does not authorize a medical review officer to give the QP a pass on the DOT drug test.  That is clear from the face of the regulations.  The DOT Office of Drug and Alcohol Policy issued a statement to reinforce that point back in October 2009, stating, "It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation's drug testing regulations to use marijuana."

So Arizona employers subject to the DOT regulations fall squarely within the AMMA exemption when they penalize an employee who is a QP by taking him or her out of a safety sensitive position.  Any other disciplinary action against that QP would not be protected and would subject an Arizona employee to potential legal liability.

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