Wednesday, October 12, 2011

Drug Testing Policy Must Spell Out Available Adverse Actions

The Arizona Drug Testing of Employees Act requires the employer’s written policy to give the employee clear notice of the consequences of a refusal to submit to testing, and to spell out any adverse action that may be taken based on testing procedure or results.  This key part of the mandatory written policy must be properly drafted if employers seek to take advantage of the tools the Arizona Legislature inserted into the Act earlier this year to ease implementation of the Arizona Medical Marijuana Act (AMMA).

Another statute, A.R.S. § 23-493.05 spells out the broad range of adverse actions that an employer may take based on a test result that indicates a violation of the written policy.

Some of the Act’s adverse action provisions, none of which were changed with the 2011 amendments, could be deemed to conflict with the AMMA.  For example, the adverse actions can include a requirement that the employee, as a condition of continued employment, enroll in a rehabilitation, treatment or counseling program, which program itself may require additional testing.  The Act makes it clear that the costs of the treatment program do not have to be paid by the employer or be covered by the employer’s health plan.  For Qualified Patients (QP) under the AMMA, it is hard to see how requiring them to seek treatment from a health care provider for a substance lawfully prescribed by another physician, whether at the employer’s expense or not, would not conflict with the AMMA’s employee protections.

Likewise, the Drug Testing of Employees Act allows employers to suspend, with or without pay, or terminate the employment of a worker whose positive drug test indicates a violation of the employer’s policy.  If the employer’s policy itself did not contain an exception for a QP’s lawful use of medical marijuana outside the workplace when such use would not result in the employee’s impairment during working hours, then those adverse actions would be a clear violation of the AMMA.

The Act contains a catchall provision permitting any other adverse actions.  This catchall encompasses such actions as a transfer to an equivalent position, which, as Arizoneout will explore in much greater detail in future posts, is likely going to be the  best and safest thing an employer can do when it discovers that it has a QP working in a safety-sensitive position.  Then the action arguably would not be adverse, even though the employee might object to it.  Of course, the risk is going to be whether the employee can convince a judge or jury that the position to which he or she was involuntarily transferred is not truly equivalent.

In terms of the Act’s requirement for a written policy, however, the key is that the written notice must spell out clearly what actions the employer may take in response to a positive drug test result.  If the policy does not say the adverse action may be taken in the circumstance at issue, then even an Arizona employer with a written drug testing policy will be taking the adverse action at its peril.  This policy is one where it is especially important to get it right!

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