Monday, October 24, 2011

Clear Statement Of Confidentiality Part Of Written Policy Mandate

The Arizona Medical Marijuana Act (AMMA) is prompting risk-averse employers to take another look at implementing drug testing. One important reason for this arises from amendments to the state's Drug Testing of Employees Act that the Arizona Legislature adopted earlier this year to ease workplace implementation of the voter-initiated AMMA.

Compliance with the technical requirements of the Act is the price of admission for taking advantage of the legislative lifeline the state senators and house members threw out there. One final technical requirement deserves consideration, before Arizoneout turns to the amendments themselves and what peace of mind they can offer Arizona employers.

The mandate for confidentiality is deeply embedded in the Act, as is the fundamental requirement of a comprehensive written policy giving employees notice of the employer's procedures and expectations.

The Act requires that the written policy state the employer’s policy regarding the confidentiality of the test results. This is another area where one provision of the Act limits the employer’s discretion regarding what its policy must be. The Act mandates that all communications received by an employer relevant to drug test results are confidential.

What that means is the employer's policy needs to spell out the people in the workplace to whom drug test results can be disclosed. That is and should be a small number. Test results can be disclosed to the tested employee or prospective employee (or another person designated in writing by the employee or prospective employee); and individuals designated by the employer to receive and evaluate test results or hear the explanation of the employee or prospective employee.

The written policy should make it clear who the employer is designating to receive the results and consult confidentially with the employee about positive results. Many employers vest a medical review officer, usually a physician or other health care professional, with this responsibility in the first instance. The medical review officer can review prescriptions and medication history to determine whether the employee is lawfully using certain controlled substances.

Good policies will designate a limited number of people, perhaps the Human Resources manager only, if the business has one on staff, to receive the results of drug tests that are reported as positive by the medical review officer. The written policy should spell out who else in the organization is entitled to know the results, and that group should be small and reasonably characterized as the "need to know" group.

The key is the written policy should set out the confidentiality of its testing program and the limits of confidentiality very carefully and clearly, and should address any ways confidentiality will vary as to lawful medical marijuana use.

Employers need to have policies that properly instruct their medical review officers on when they should report a Qualified Patient (QP) as failing a drug test for marijuana. Arizoneout will explore in future posts what is known -- and what is still very much a gray area -- on what the instruction to the medical review officer should be under the AMMA.

Friday, October 21, 2011

Compliant Policy Informs Employee Of Drug Testing Rights

One of the best steps an Arizona employer can take to adapt to the workplace challenges presented by the Arizona Medical Marijuana Act (AMMA) is to adopt a drug testing policy that complies with the state's newly amended Drug Testing of Employees Act.

A fundamental prerequisite for compliance is a written drug testing policy, and we have been slogging through the detailed and technical mandates for what that policy must contain.  One of those mandates is for written notification to employees of their rights under the Act.

Among the rights that must be set forth in writing is the employee’s right to request the written test results.  This right exists whether or not the result is positive.

Another employee right that must be set forth in the written policy is the right to explain, in a confidential setting, a positive test result.   The employee also has a right to provide information relevant to the test at the time of sample collection, and while the Act does not mandate disclosure of this right in the employer’s written testing policy, common sense dictates that the statement regarding sample collection procedures should include notice of this right, as well. 

Reading both statutory provisions together makes it clear that even if the employee does not disclose his status as a current or former Qualified Patient (QP) under the AMMA at the time of sample collection, such as showing an AMMA ID card, the employee will get a second opportunity to do so if the confirmed test results come back positive.

Wednesday, October 19, 2011

Policy Must Comply With Technical Details To Qualify For AMMA Lifeline

Arizoneout continues its examination of the lifeline the legislature threw to Arizona employers facing implementation of the Arizona Medical Marijuana Act (AMMA).  The legislature amended the Drug Testing of Employees Act earlier this year, and it is only employers who otherwise comply with the Act who can grab at this lifeline.

A key requirement of the Act is a detailed and specific written policy, and over several recent posts, we have examined the persnickety statutory mandates for that written policy.  Today, we cover a collection of technical provisions that must be part of the policy.

The employer’s written policy must include a description of the specific collection procedures and testing methods it will use.  The definition of “sample” in the act includes urine, blood, breath, saliva, and hair, indicating that all of those testing methods are available for an employer's use.  The written policy should state whether the collection of urine samples will be observed and, if so, how and by whom. 

Another provision of the Act limits the employer’s discretion to shape its own policy, as employers are required to use a lab approved or certified either by the U.S. Department of Health and Human Services, the Arizona Department of Health Services, or the College of American Pathologists.

The Act also requires confirmation testing of any positive test and mandates that the second test be a chromatographic technique.  That means a confirmed positive test is extremely unlikely to be a false positive.  But it also means the testing process itself must be more expensive.

Monday, October 17, 2011

Arizona Republic Editorial Writer Advocates Legalization Of Marijuana

Linda Valdez, an editorial writer for the Arizona Republic, has drawn an interesting conclusion from watching Ken Burns' latest miniseries on Prohibition, which is now showing on PBS affiliate stations.

In a short item on Friday, under the headline "Learn from that disaster Prohibition," she starts with the assertion that medical marijuana is a sham.  Then she concludes with the question, "Why don't we legalize and tax marijuana?"

Don't expect the entire editorial board of the Republic to join in that opinion anytime soon.  Still, it is surprising to find that position expressed on the Republic's usually very conservative editorial pages

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!

Monday, October 10, 2011

California Federal Prosecutors Taking Aim At Pot Business, Scattershot In Approach

What was always an uneasy truce between federal drug enforcement authorities and the thriving medical marijuana industry in the 16 states that have some version of the Arizona Medical Marijuana Act (AMMA) now appears completely shattered.

The U.S. Attorneys for the four California federal districts held a joint press conference in Sacramento on October 6, 2011 to announce a crackdown on the state's medical marijuana industry, which the prosecutors claim has corrupted the intent of the 1996 compassionate use voter referendum, the first such law in the nation.

The prosecutors are using a variety of tactics.  In Orange County, prosecutors have brought a criminal indictment against a strip mall operator who leased 11 suites to marijuana stores.  In Sacramento, prosecutors have filed criminal charges against operators of a large-scale dispensary that allegedly took in $30,000 to $50,000 a day from marijuana sales and had nearly $600,000 and more than 250 pounds of pot on hand. 

Also indicted was a Los Angeles attorney who allegedly has pocketed millions of dollars by organizing growing schemes for marijuana dispensaries. The attorney formed a management company and hired two prize-winning tomato growers to convert their greenhouses to cultivating thousands of marijuana plants.

Federal prosecutors around the state also have sent letters to landlords of major dispensaries and cultivators, ordering them to evict their tenants within 45 days or face 40 years in prison, forfeiture of the property, and any rents paid.  A recent Bloomberg.com report quotes a San Francisco woman who claims to be the first dispensary operator in the United States describing the letter her landlord received as "very ominous."

The top federal prosecutor for Los Angeles, Andre Birotte, stated at the press confernce that the California law did not permit the types of businesses the feds were targeting.  "While California law permits collective cultivation of marijuana in limited circumstances, it does not allow commercial distribution through the store-front model we see across California,” he said.

One big difference between the Arizona and California laws is that the AMMA expressly permits and regulates non-profit dispensaries and cultivation sites.  Of course, those are not yet up and running because of litigation Governor Jan Brewer filed back in June

Arizona citizens are left to wonder whether the higher degree of state regulation would make a difference to federal prosecutors here.  That likely would depend on whether Arizona's detailed regulatory scheme achieves its aim of keeping the focus on medical use, as opposed to recreational use.  But with the AMMA only partly implemented, the efficacy of that scheme has yet to get a fair test.

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.

Thursday, October 6, 2011

Feds Open Another Front In Conflict With State Medical Marijuana Law

The Internal Revenue Service has joined the fray in the ongoing conflict between state compassionate use laws, such as the Arizona Medical Marijuana Act (AMMA), and federal law classifying marijuana as an illegal drug for all purposes.  The ruling invokes a little-known provision of the tax code, enacted at the height of the Reagan Administration War on Drugs to target drug kingpins.

The provision bans any tax deductions related to trafficking in controlled substances.  The IRS applied the provision to disallow deductions for such ordinary business expenses as employee wages and rents taken by a not-for-profit California marijuana dispensary.  The effect of disallowing the deductions means that the dispensary owed federal taxes on its gross profits. 

Arizoneout commends readers to a very interesting report on the ruling posted yesterday on the Bottom Line business blog on msnbc.com.  The msnbc.com report contains an interview with the dispensary operator, who says he could not continue in business if the ruling stands.  He says he will appeal.

What Arizona employers should take away from the ruling is that it makes it even less likely that the dispensaries permitted by the AMMA will ever get off the ground.  That part of the law is stalled now because of a lawusuit filed by the state.  But that doesn't mean employees won't be using medical marijuana.  Instead, the current situation is likely to continue indefinitely, when most Qualified Patients (QPs) and their Designated Caregivers (DCs) are forced to grow their own.

Tuesday, October 4, 2011

Adult Entertainment Event Taints Medical Focus Of AMMA

I have deliberated for a couple of weeks whether even to mention this upcoming event.  It came to my attention when my husband brought home a slick postcard  from a stack that was set out at a neighborhood diner.  The promo certainly caught my eye, featuring several logos incorporating a cannabis leaf and silhouettes of shapely women in exotic dancer poses, the largest of which is wearing a green, cannabis leaf string bikini.

Because I believe that employer concern about medical marijuana is fueled by its frequent connection to the adult entertainment world, I decided it was worth mentioning, although I will try not to say so much that I will be promoting the event.

It is billed as a "girl contest" and medical marijuana expo, and promoted by an organization with the title Campaign Against Marijuana Prohibition in Arizona.  The Arizona Corporation Commission does not list that as a registered state entity, although there is an expired fictitious name registration for its acronym, CAMP 420, the number being a drug culture reference to the time (4:20 p.m.) when cognoscenti gather at a designated location to smoke pot.  

The event will be held next Saturday at an outdoor entertainment venue in north Tempe, AZ, 910 Live, which opened in March 2010.  The party and concert venue's opening was noted in the Arizona Republic, and  its operator stressed that it was not a strip club.

It is billed as a "classy, fun, adult event," which will focus on the Arizona medical marijuana "industry, its patients and its advocates."  In addition to the "girl contest," the expo supposedly will have music, vendors, beauty and fashion, and bills itself as a fundraiser for CAMP 420's mission to educate and make a change to current legislation.  What change to the newly effective Arizona Medical Marijuana Act (AMMA) that might be cannot be discerned from the postcard or the organization's website.

Arizoneout's view, for what it's worth, is that medical marijuana patients and their advocates hurt their cause when they connect themselves with adult entertainment activities that are far removed from the compassion toward those suffering debilitating medical conditions that likely prompted Arizona voters to adopt the AMMA in the first place.

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.