Friday, November 11, 2011

Public Employers Face Extra Drug Testing Limits

Over several recent posts, Arizoneout has been examining the state Drug Testing of Employees Act, as the Arizona Medical Marijuana Act (AMMA) has made adopting a compliant policy a high priority for many employers.  That’s the case thanks to amendments the state legislature made to the Drug Testing of Employees Act earlier this year to ease implementation of the AMMA in Arizona workplaces.

The Drug Testing of Employees Act applies both to public and private employers.  One of the ways the legislature amended the Act was to add into the definition of “employer” subject to its provisions the state of Arizona and all of its political subdivisions.

Before the amendment, the definition explicitly excluded the state and all of its agencies, except for the departments of public safety, corrections, and juvenile corrections, and all political subdivisions of the state.  Thus, public employers are especially new to the Drug Testing of Employees Act’s many technical requirements.  

A September 29, 2011 post discussed the circumstances under which the Drug Testing of Employees Act permits an employer to require employees to submit a sample for drug testing.  The Act specifically authorizes random testing.  In that post, Arizoneout noted that public employers must be aware of additional limits on random testing, and promised to devote another post to that topic.

This is that post.  Before we move on to the other AMMA-specific amendments to the Drug Testing Act that the legislature adopted earlier this year, let’s close this loose end.

Thanks to a 2004 Arizona Supreme Court case coming out the City of Mesa, public employers know that it is a violation Fourth Amendment to the U.S. Constitution to require public employees to undergo random testing.  The case is Petersen v. City of Mesa.   Random testing also may be a violation of Article II, Section 8 of the Arizona Constitution, which provides that “no person shall be disturbed in his private affairs . . . without authority of law.”   The Arizona Supreme Court did not decide that question.

The City of Mesa implemented a drug testing program for its Fire Department in 2001.  The City tested firefighters in four circumstances: (1) upon reasonable suspicion the individual firefighter has abused drugs or alcohol; (2) after an on-the-job accident involving the firefighter; (3) upon the firefighter’s return to duty from an injury or a substance abuse diversion; and (4) “on an unannounced and random basis spread reasonably throughout the calendar year.”

Craig Peterson, a city of Mesa firefighter, filed a pre-emptive lawsuit, challenging only the random testing requirement.  

The Arizona Supreme Court rejected the argument that firefighter was a sufficiently safety-sensitive position to permit suspicionless, unannounced drug testing, when the City of Mesa had offered no evidence of any drug problem among its firefighters.

The City of Mesa argued that the safety-sensitive nature of the position gave it a special need to invade firefighters’ privacy by conducting random testing, based on two  U.S. Supreme Court cases.  One of them, National Treasury Employees Union v. Von Rabb, authorized suspicionless testing of U.S. Customs employees, not on a random basis but upon promotion or transfer to a position directly involved in drug interdiction or requiring the carrying of a firearm.  The other, Skinner v. Railway Labor Executives Ass’n, authorized suspicionless drug testing of railway employees because of their diminished expectation of privacy from working in an “industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness” of railway employees.

According to the Arizona Supreme Court, the Mesa firefighters had a similar diminished expectation of privacy because their job involves safety risks, they are entrusted with protecting the community and their colleagues from danger, and their ability to do their jobs depended on their own health and fitness.  Nevertheless, the court found that the City of Mesa’s generalized interest in deterring and detecting alcohol and drug use among its firefighters was not a sufficiently strong interest to overcome even the lessened privacy interests of the firefighters.

If the safety-sensitive nature of firefighting is not enough to justify random drug testing, then it is hard to imagine a public employee job outside of law enforcement and corrections that would qualify for random drug testing.  As future posts will address, the Arizona Legislature has a vastly different view of what counts as a safety-sensitive position than the state’s highest court.

Thursday, November 3, 2011

AMMA After A Year -- Just As Confusing As Last Year

As November 3, 2010 dawned, the electoral fate of the Arizona Medical Marijuana Act (AMMA) was officially too close to call.  The "No" side on Proposition 203, the voter initiative that made the AMMA law, held a 6,000-vote lead.  More than a week later, when all the votes were counted, the "Yes" side led by fewer than 5,000 votes. 

By November 29, just 27 days after the last vote was cast, the Prop 203 victory was certified as official.  Marijuana would be legal for medical purposes in the state.

Upon the anniversary of the AMMA's passage, the AMMA's fate is just as much up in the air, and it does not appear that a resolution will come anywhere nearly as quickly as the 27 days it took to tally the vote with finality.

In the October 27, 2011 issue of the monthly Phoenix New Times, Ray Stern offers a fine summary of the recent federal attacks on the medical marijuana industry in an article titled, "Obama's War on Weed:  In a strange about-face, the President tries to hack medical marijuana off at the knees."  As this post was written, it was the most popular story on the Phoenix New Times website.

Phoenix New Times sells ads to the medical marijuana industry, and discloses that fact in the article.  It is a Village Voice publication, and its perspective is decidedly liberal.  The article's take on the politics -- partisan and not -- rolled up in the medical marijuana debate makes it an entertaining read no matter your political stripe.

Wednesday, October 26, 2011

Two Sides Of Prop 203 Debate Hold Diametrically Opposed Views On Future Of AMMA

The Arizona Republic published an interesting point-counterpoint on Sunday about the half-way implementation of the Arizona Medical Marijuana Act (AMMA).   In Q and A format, the Republic polled two of the leaders of the groups that supported and opposed Proposition 203 in the run up to the November 2010 election.

Representing the victorious Arizona Medical Marijuana Association was Joe Yuhas.  For its victory, his Association finds itself a defendant in the federal lawsuit that Governor Jan Brewer filed in April that brought a halt to implementing the dispensary system that is an integral part of the AMMA.

On behalf of the losing political action group in the Prop. 203 fight, Keep AZ Drug Free,  was Carolyn Short.

On this Q, their respective answers definitely showed their political stripes:

Q. Will Arizonans ever see full implementation of Prop. 203?

Yuhas' A:  Yes.  . . .  The pace of it is debatable.

Short's A:  Not a chance.  Pretty much everybody thinks that.

Yuhas' message is one that Arizoneout has delivered a few times.  The current situation is the worst of all worlds.  In Yuhas' words, "At some point the piecemeal implementation of Prop. 203 is going to be recognized as adverse to the overall interest of patients and the community."

Most of the 13,000-plus Arizonans who have been granted a state license to use marijuana to treat a debilitating medical condition or symptom also have been granted permission to grow their own.  The AMMA would permit 126 dispensaries, which would be required to have security, inventory control, and otherwise be subject to state monitoring.

According to Yuhas:  "Arizonans would prefer to have a dispensary in their community that's regulated than to have an unlimited number of people growing it themselves."

Short does not argue to the contrary.  Instead, she sees medical marijuana as a ruse that uses physicians and sick people to facilitate recreational use.  "If people want to have marijuana in this country for recreational use, then they're going to have to change federal law.  And I don't think that's going to happen," she says.

Short may want to be a little less certain of the future of federal legislation.  On October 17, 2011, the Gallup organization announced that according to its annual data, 50% of Americans now say that the use of marijuana should be made legal.

Gallup has asked the question every year since 1969, when the polling was 84% against legalization.  The trend in favor of legalization has picked up speed over the years, hitting 30% in 2000, and 40 percent in 2009.  In 2010, Gallup's data showed 46 percent of Americans favored legalization.

Another Gallup survey in 2010 found that fully 70 percent of Americans support the medical use of marijuana if recommended by a doctor.

What that says to Arizoneout is that legal medical marijuana is here to stay in workplaces all around the state.  The dispensary skirmish is likely to play out for months or years, but Arizona employers need to come to grips now with the fact that legal marijuana users exist in their current or future workforce, and they are not going anywhere.

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.