Arizoneout explored in a recent post the parameters of this liability shield. The most important limitation is that the shield is available only to Arizona employers who adopt a testing program that complies with the Drug Testing of Employees Act. Another important consideration is how employers determine whether a position qualifies as a safety-sensitive one.
Once again, the legislature tried to be as employer-friendly as possible by giving each employer the discretion to decide just which of its job positions qualified as safety-sensitive. In addition, the legislature also provided some specifics.
Jobs qualify as safety sensitive if they include tasks or duties that the employer in good faith believes could affect the safety or health of the employee performing the task or others. The legislature then gave several examples, including jobs that involve:
- operation of a motor vehicle, or any other equipment, machinery or power tools;
- repairing, maintaining, or monitoring the performance or operation of any equipment, machinery, or manufacturing process, the malfunction or disruption of which could result in injury or property damages;
- performing duties on the premises of a customer, supplier, or vendor; or
- preparing or handling food or medicine.
If that list was not employer-friendly enough, the legislature also included in the definition of safety-sensitive position any occupation regulated pursuant to Title 32 of the Arizona Revised Statutes. So who does that include? A whole lot of Arizona employees.
Title 32 is extremely broad, covering just about every occupation for which a state license is required, including all of the medical professions; barbers, cosmetologists, aestheticians, and nail technicians; certified public accountants; collection agency employees; contractors; funeral directors and embalmers; architects, engineers, geologists, landscape architects, and surveyors; real estate brokers and agents; veterinarians and veterinarian technicians; pest control applicators; private investigators; security guards; polygraph examiners; and massage therapists.
It’s hard to think of a job that would not fall in the safety-sensitive category, if an employer chooses to designate it as such. Whether Arizona courts will be as generous in applying these legislative provisions is something upon which employers likely will not be able comfortably to rely for years to come.
In the meantime, employers should be prepared to justify why they have designated any particular position as so safety-sensitive that a QP using medical marijuana during his or her off-duty hours should be disqualified from performing it.