Friday, December 9, 2011

Nifty New Provisions Offer Employers Shield From AMMA Liability

Earlier this year, the Arizona Legislature tried to help employers with implementation of the Arizona Medical Marijuana Act (AMMA).  The vehicle used was the Drug Testing of Employees Act.  So for Arizona employers who have adopted already or in the future adopt a drug testing program in compliance with the Act, there are some nifty new statutory provisions that may protect them from liability.

Probably the most important new provision relates to safety-sensitive positions.  The Drug Testing of Employees Act always has contained a section designed to protect employers from litigation for the actions they take in response to a positive drug test, as well as for employers’ failure to conduct drug testing or failure to detect a specific drug in particular circumstances.

The 2011 amendments greatly expanded those protections from litigation for employers who take certain actions, including actions to exclude Qualified Patients (QPs) legally using medical marijuana from working in safety-sensitive positions.

One new provision purports to shield an employer who has a drug testing program from liability for any actions the employer takes to exclude an employee from performing a safety-sensitive position, based on the employer’s good-faith belief that the employee is engaged in the current use of any drug, whether legal, prescribed by a physician or otherwise, if the drug “could cause an impairment or otherwise decrease or lessen the employee’s job performance or ability to perform the employee’s job duties.”

This new provision is not specific to medical marijuana.  Indeed, employers can rely on this liability shield to exclude employees from safety-sensitive positions while they are on narcotic pain medication or even cough syrup, as two examples.

The new statutory language allows the employer to reassign the employee to another position, presumably one that is not safety-sensitive, or to place the employee on paid or unpaid leave.  This particular statutory provision does not authorize termination, however.

If the statute is valid, then employers who learn that an employee is a QP using medical marijuana can put that employee on unpaid leave for the duration of the employee’s use of medical marijuana, if the employee otherwise would be working in a safety-sensitive position. 

That caveat – if the statute is valid – is very important.  The AMMA adopted by Arizona voters prohibits employers from taking adverse employment actions against a QP because of the QP’s medical use of marijuana.  It is hard to argue that forced unpaid leave is not an adverse employment action. 

It will be up to Arizona courts to determine whether that provision is valid, or whether it is inherently in conflict with the voter-approved AMMA.   If there is an inherent conflict, then the voter-approved AMMA trumps anything the legislators have adopted.

Employment actions short of unpaid leave, however, such as reassignment to a different, not safety-sensitive, position or paid leave, with no reduction in pay or other benefits, likely do fall within the liability shield the legislature adopted earlier this year.

Over several future posts, Arizoneout will delve deeper into the amendments to the Drug Testing of Employees Act that the legislature adopted earlier in 2011 to help employers with the implementation of the AMMA.

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