Friday, October 7, 2011

Policy Must State Whether Marijuana Is Among Drugs To Be Tested

Arizoneout continues its deep dive into the Arizona Drug Testing of Employees Act to educate employers who want to use the new provisions inserted in the law by the Arizona legislature last spring to counteract the potential workplace problems posed by the Arizona Medical Marijuana Act (AMMA).

The Drug Testing of Employees Act requires adoption of a detailed written policy.  Among the mandates of the Act is a requirement that the written policy state specifically what substances will be tested.  The key is to make sure your policy matches the standing orders given to the testing lab.

The Act limits the substances for which employers can test to “unlawful” drugs or alcohol.  Under the AMMA, marijuana is not an “unlawful” drug when used by a Qualified Patient with a state-issued ID card.  So does the law even permit Arizona employers to test for delta-9-tetrahydrocannabinol -- TCH for short reference -- and its metabolites, the primary intoxicating substance found in the Cannabis sativa plant? 

Standing alone, the requirement to test only for “unlawful” drugs appears to pose just that dilemma.  A definition provision of the Act spares employers from this quandary, however, defining “drugs” to include any substance considered unlawful under federal law. 

Marijuana is most definitely an unlawful controlled substance under federal law.  Thus, Arizona employers can include marijuana among the substances for which they test, without fear of violating the AMMA or any other law.  So long as the employer's written policy specifically states that it tests for marijuana, that is.

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