Thursday, September 29, 2011

Written Policy Must Address Whos, Whens Of Employee Drug Testing

Employers should be developing or revising their drug testing policies to take advantage of the tools crafted earlier this year by the Arizona Legislature to soften the workplace impact of the Arizona Medical Marijuana Act (AMMA).  One key to an effective written policy is that it needs to describe which employees or prospective employees are subject to drug and alcohol testing and when.

Remember that the Arizona Drug Testing of Employees Act, into which these new tools were incorporated, requires that all compensated employees, including officers, directors and supervisors, be included uniformly in any testing policy adopted. 

The Act allows an employer to elect to test only prospective employees, only employees working in safety-sensitive positions, only those involved in workplace accidents, or any other identifiable subset of the entire workforce, so long as the uniformity requirement is met.   What that means is that a company testing only prospective employees would have to test those offered conditional employment as janitor as well as those offered the position of company president. 

A good argument can be made that the Act does not require testing of business owners who are paid solely from the profits of a small business, as they are technically not “compensated employees.”  Beware of excluding from a testing policy business owners who draw a regular salary, however, as there is no definitive court decision on the meaning of the term.  A court could find owners paid a salary fall within the group to which the legislature intended the uniformity requirement to apply.

The policy also must specify the circumstances under which testing may be required.  The Act is very broad in terms of what circumstances are permissible, so long as the employer can establish that the testing is for a job-related purpose consistent with business necessity.  If that standard sounds familiar, it should.  It is the same showing an employer must make to sustain a practice that causes a disparate impact on a class protected by the federal antidiscrimination laws.

The key is to make sure the written policy specifically discloses that testing will be conducted in all of the ways you intend to use it.  Among the permissible circumstances in which a policy could authorize testing are in an investigation of possible individual employee impairment on the job, as well as reasonable suspicion that an employee may be affected by the use of drugs or alcohol in a way that may adversely affect job performance or the work environment.  How those two circumstances, both stated specifically in the Act, intersect with each other is an open question.  A cautious written policy would require reasonable suspicion for testing in both circumstances.

The Act also allows a written policy to permit testing in more fuzzy circumstances, including maintenance of safety for employees, customers, clients or the public at large, and maintenance of productivity, quality of products or services or security of property or information.  Employers relying on those justifications should make sure they have thought through the implications and can marshal the arguments to support the job-relatedness and business necessity of such a policy.

Post-accident testing is also authorized, but the Act requires that the testing take place as soon as practicable after the accident and that it encompass all employees who the employer reasonably believes may have contributed to the accident.

Random testing is specifically permitted, but public employers must be aware of other limits on random testing, which Arizoneout will examine in a future post.

Tuesday, September 27, 2011

Specific, Detailed Written Policy Helps Employers Prevent AMMA Issues

The September 23rd post listed the many strict, mandatory requirements the Arizona Drug Testing of Employees Act.  Employers need to know that compliance with all of those mandates is imperative to achieve the benefits the Arizona Legislature made available to employers earlier this year to ease their implementation of the Arizona Medical Marijuana Act (AMMA).

While all of the mandatory provisions are important, the requirement contained in Arizona Revised Statutes § 23-4903.04 for a detailed, written policy deserves special emphasis and elaboration.  There are few, if any, employer regulations that are as specific in dictating what the terms of a private workplace policy must and must not contain.

First of all, the written policy cannot just exist on a memo in a Human Resources Department file or in a supervisors’ manual.  The Arizona statute requires that the policy be distributed to every employee subject to testing or made available to employees in the same manner as the employer informs its employees of other personnel practices, including inclusion in a personnel handbook or manual or posting in a place accessible to employees.

The writing must contain a comprehensive statement of the employer’s policy respecting drug and alcohol use by employees.  After the AMMA, crafting this statement can be much trickier than it used to be.  Zero tolerance policies that make termination of employment a mandatory consequence of a Qualified Patient’s (QP) use of medical marijuana in compliance with the AMMA would violate the voter-approved law.  

Employers instead should consider a more complex statement of policy that prohibits use of alcohol or drugs on the premises or at any time that would result in the worker being impaired during work hours.  Medical marijuana needs to be addressed separately for workers in safety-sensitive positions.  What positions might qualify as safety-sensitive is a topic for a future post, or, more likely, several of them.

Friday, September 23, 2011

State Drug Testing Law Imposes Strict Requirements

The Arizona Drug Testing of Employees Act mandates certain conditions that employers must meet to qualify for the benefits and protections the law offers.   This is the price of admission for employers wanting to claim the significant benefits offered by the Act.

In response to the Arizona Medical Marijuana Act (AMMA), the Arizona Legislature amended the  Act to give employers additional tools to use in conjunction with a drug testing program to maintain safe and productive workplaces.  To take advantage of these tools, however, the employer still must meet the law's procedural requirements, which are very much designed to protect the employee. 

In other words, the 2011 amendments to the Act increased the benefits and protections for employers, but did not lower the price of admission.  Here are a few of the important procedural requirements a workplace drug testing program must meet to comply with the Drug Testing of Employees Act:

Written policy required:  Employers must document their drug testing program in a written policy that is distributed to all employees.  It can be contained in an employee handbook or posted where other employee notices are posted.  Employers also must inform applicants if they will be required to submit to a drug test as a condition of employment.  The policy must be detailed and set forth the circumstances under which testing will be required, the substances that will be tested, and any adverse actions that may be taken as a result of a positive test or a refusal to submit to testing.

Timing of tests: Testing normally must occur either during or immediately before or after a regular work period.  The time spent being tested is considered work time for purposes of compensation and benefits.

Cost of tests:  The employer must pay all actual costs for drug and alcohol impairment testing of its employees, but not of applicants.  The law gives employers the discretion to pick up the cost of pre-employment drug testing if they so choose.  If the testing is done off-site, the employer must pay reasonable transportation costs for current employees.

Opportunity to provide relevant information:  The employee must have an opportunity to provide notice of any information relevant to the test, including identification of currently or recently used prescription or nonprescription drugs or other medical information.

No exemptions allowed:  If an employer chooses to implement a drug testing program, all compensated employees, including officers, directors, and supervisors, must be included uniformly in the testing program. 

Confidentiality:  All information regarding drug testing must be maintained in confidence by the employer.

Instituting a compliant drug testing program can be costly and must be done correctly to obtain all the benefits that come with it.  But for Arizona employers concerned about how the AMMA may affect their business, the Drug Testing of Employees Act is certainly worth a close look.

Monday, September 19, 2011

A Good Reminder Of The Many Other Legal, But Problematic Drugs In Arizona Workplaces

The lead story on the Arizona Republic Business section on Sunday was headlined "Prolific prescribers face scrutiny as market is flooded with pain pills."  While Arizoneout is focused on the Arizona Medical Marijuana Act (AMMA) and its impact on the workplace, the article was a good reminder that employers also must deal with impairing prescription drugs, which are a much larger relative problem than medical marijuana, at least for the time being.

The art accompanying the article showed a PEZ dispenser with the head of a doctor, with stethoscope and headlamp, dispensing pain pills.  The article was focused primarily on the actions taken against two physician dispensers of addictive pain medication.  One of those physicians accounted for nearly $1 million in prescriptions for narcotics in 2008 and 2009 that were paid for by the state's Medicaid program.

The article also had some statistical data that employers should keep in mind.  Arizona pharmacies dispensed enough oxycodone last year to supply an individual for 26 million days.  Stated another way, there was enough oxycodone dispensed to supply every adult in the state for 5.2 days.

The most commonly prescribed narcotics in Arizona after oxycodone were hydrocodone (24.8 million days supply), Ambien (24.1 million days supply), and Xanax (17.3 million days supply). 

People taking these drugs are in Arizona workplaces.  They have prescriptions for the drugs.

The Drug Testing of Employees Act, and particularly the new provisions just adopted by the legislature in response to the AMMA, offer employers some reasonably good tools for dealing with the impairing effects of all legal drugs.  If the controversial nature of the AMMA causes employers to examine what kind of drug testing program is best suited to their unique workplace issues, and if that examination causes employers to adopt and tailor their drug testing polices carefully, then that's one good thing the AMMA has done for employers in the state.

Wednesday, September 14, 2011

Drug Testing And The AMMA

Arizona has had a law governing workplace drug testing since 1994.  Compliance with it is completely voluntary and the Arizona Legislature made it a point of stating in the law that it was not to be construed "to encourage, discourage, restrict, limit, prohibit or require" drug testing in the workplace.

Before the Arizona Medical Marijuana Act (AMMA), there was little incentive for employers to comply with the rather strict terms of the Drug Testing of Employees Act.  That was because the legal risks of noncompliance were rather low.

That fits the national trend.  According to a recent survey of HR professionals conducted by the Society for Human Resources Management, 57 percent of employers conduct pre-employment drug testing of all applicants.  After hiring, however, only 36 percent of employers do any kind of drug testing of current employees.

After the AMMA, however, employers may want to think again about whether to institute a workplace drug testing program that extends to current employees.  The Arizona Legislature gave employers some tools to use in implementing the AMMA in the workplace in the last session, when they amended the Drug Testing of Employees Act.  I wrote about the law, House Bill 2541, as it made its way through the Legislature in two articles in the Arizona Employment Law Letter - April 2011 | June 2011.

In future posts, I will discuss HB 2541's provisions and explain how they may help employers identify and deal legally and effectively with employees working in safety-sensitive positions who are also protected Cardholders under the AMMA.  Remember when we get there that I said "may."  There also are some reasons not to rely too heavily on HB 2541's employer protections, as there is a strong likelihood they will be challenged in court.  Why not?  It seems that almost everything else relating to the AMMA lands in litigation.

A firm understanding of the Drug Testing of Employees Act will aid employers in deciding whether they want to try to take advantage of the help the Arizona Legislature tried to give them.  That is because the price of admission to those protections is adopting and implementing a drug testing policy that complies with all of the requirements of the Drug Testing of Employees Act. 

So my plan is to devote the next few posts to explaining the key requirements of the Drug Testing of Employees Act, and the benefits it offered to employers even before the Legislature adopted HB 2541 earlier this year.  The plan is always subject to news, interesting comments, or other entertaining distractions.  But that is the plan over the next week or so.

Friday, September 9, 2011

By The Numbers: QPs Top 11,000 Mark

The Arizona Department of Health Services (ADHS) has just reported the results of its first five months of issuing ID cards to Qualified Patients (QPs) and Designated Caregivers (DCs) under the Arizona Medical Marijuana Act (AMMA).

A total of 11,133 QP applications have been approved.  Only seven QP applications have been denied, a success rate of 99.5 percent.  About 75 percent of the QPs are men. 

Chronic pain continues to be the overwhelmingly predominant debilitating medical condition cited by the certifying physician, making up more than 85 percent of the total.  Muscle spasms are a distant second at 15.9 percent, followed by nausea at 12.8 percent.  Cancer patients make up only 4.9 percent of the total QPs approved thus far.

The growth in DCs has been small, with only 487 applications approved thus far, out of 507 submitted.

The QPs are clustered mainly in the state's two largest cities, with the densest populations in the Valley's population cores of Phoenix, Paradise Valley, Scottsdale, Tempe, Mesa, Peoria, and Chandler.

Because of the litigation holding up implementation of the AMMA's dispensary system, fully 81 percent of all QPs are requesting and being granted permission to cultivate their own medical marijuana.  

The age distribution is interesting.  The largest percentage of QPs are in the 51-60 age group, at nearly 25%  of the total.  The rest of the age cohorts found in most Arizona workplaces each makes up about 20% of the total:  18- to 30-year-olds, at 21.9 percent,  31- to 40-year-olds, at 20.4 percent, and 41- to 50-year-olds, at 19.9 percent.  The 61- to 70-year-old cohort makes up 11.3 percent of the total. 

Most of these QPs are in the Arizona labor force, potentially in your workplace.

Tuesday, September 6, 2011

What Are They Thinking? Maricopa Supervisors Create Grow-Your-Own Havens

The Maricopa County Board of Supervisors on August 31, 2011 undid the work it invested late last year in creating a zoning classification for medical marijuana dispensaries and cultivation sites in the unincorporated areas of the giant, most-populous county in Arizona.

The Arizona Medical Marijuana Act (AMMA), adopted by the voters in November 2010, allows cities and counties to impose reasonable zoning restrictions on dispensaries and cultivation sites.  Maricopa County was quick to act, with its Board of Supervisors taking action to amend its zoning ordinance on November 17, 2010, only days after the unofficial election results showed that Proposition 203 had passed.  Supervisor Mary Rose Wilcox lauded the staff for their "proactive move that will be good for the community," and the Board unanimously adopted a text amendment that provided the requirements and regulations for dispensaries in the unincorporated "county islands" whose development it governs.

That was then.  Bill Montgomery was elected Maricopa County Attorney in the same election, and he was one of the most vocal opponents of Proposition 203.  On May 26, 2011, he issued a formal legal opinion advising the Board to take no steps to implement the AMMA.  His opinion coincided with the announcement that Governor Jan Brewer was going to sue the federal government in federal court, the first of a flurry of lawsuits that brought a halt to the dispensary application process.

The recent Board action -- again unanimous with Commissioner Fulton Brock absent -- was in response to Montgomery's legal opinion.  Maricopa County did away with the zoning definitions it adopted just after the AMMA's passage, instead reclassifying dispensaries and cultivation sites as ones which must not be in conflict with any federal law.  So as long as marijuana is an illegal drug for all purposes under the federal Controlled Substances Act, no one can set up a dispensary in unincorporated Maricopa County.

That means that when and if the dispensary application process gears up again, the county islands of Maricopa won't be getting any.  And Qualified Patients (QPs) who live in those areas -- and have no dispensary within 25 miles -- will be able to grow their own so long as the zoning classification remains in place.

One of the purposes of the AMMA and the detailed implementing regulations developed and adopted by the Arizona Department of Health Services (ADHS) was to give QPs -- and only QPs and their Designated Caregivers -- safe and legal access to medical marijuana at tightly regulated dispensaries.

ADHS Director Will Humble even touted the incentives built into the regulations to encourage dispensaries to locate in rural areas.  "We made sure that inventory could be transferred between dispensaries (and their cultivation facilities) by allowing for a wholesale market.  That way, dispensaries in rural Arizona that may have a limited number of qualified patients can decide that a core part of their business plan is to cultivate for the wholesale market and sell their inventory to dispensaries in urban Arizona," Humble said in a March 2011 blog post.

Surely having marijuana growing in homes scattered all over unincorporated Maricopa County is a worse option than having QPs in those areas able to buy medical cannabis products at a few well-controlled, non-profit dispensaries.  Arizoneout certainly thinks so.

Thursday, September 1, 2011

Arizona In Unusual Spot -- More Employee-Friendly Than California

Because of the protections against employment discrimination incorporated in the Arizona Medical Marijuana Act (AMMA), Arizona finds itself in the extremely unusual position of being more liberal in one area of workplace rights of employees than its western neighbor, California, the Golden State.

California is indeed generally pretty golden for employees, having some of the most generous laws on wages, hours, and benefits in the country.  While California was the first state to legalize marijuana for medical purposes, the ballot measure says nothing about whether employers have to tolerate legal marijuana use among their workers.  California courts have not found employment protections inherent in the law permitting the use of marijuana for medical purposes.

I’m adding California Labor & Employment Law Blog ( to the Arizoneout blog roll, because they are doing a good job of covering the efforts to get the same kind of protection for California’s legal medical marijuana users as already exists for their counterparts in Arizona.  Examples are posts earlier this year when legislation was introduced (but has not advanced) to adopt Arizona-like employee protections, and in 2008 when then-Governor Arnold Schwarzenegger vetoed a similar bill.