Monday, February 13, 2012

Expansion Of Employer Immunity For Actions To Keep Medical Cannabis Users Out Of Safety-Sensitive Positions

In a post late last year, Arizoneout explained how broadly the state legislature reached in giving employers discretion to attach the safety-sensitive label to certain job positions.  Despite the broad protections against workplace discrimination that the Arizona Medical Marijuana Act (AMMA) provides to Qualified Patients (QPs), the legislature wants employers to be able to keep QPs out of safety-sensitive positions when they reasonably believe the QPʼs use of medical cannabis might subject the employer to liability.

Hereʼs how the legislature has tried to give employers this ability to do what the AMMA seems to prevent employers from doing, and why it had to be done under the Drug Testing of Employees Act.  The 2010 amendments to the Act expanded the liability shield already contained within it to actions employers take to get workers using not just medical cannabis but other impairing drugs out of safety-sensitive positions.

The original language of the liability shield was titled, "Employer protection from litigation," and read as follows:  "No cause of action is or may be established for any person against an employer who has established a policy and initiated a testing program in accordance with this article for any of the following."

The list of immunized conduct included the expected − actions taken in good faith based on positive test results, failure to test, to test for a specific substance, or to detect a substance or condition, and termination of any program or policy on testing or substance abuse prevention.

The amendments in 2011 that were targeted at the AMMA added three new categories of employer conduct that the legislature wanted to immunize.  Two were the very policies that the AMMA  itself allowed employers to have:  prohibitions on use or being impaired on the employerʼs premises or during work hours.  The immunity shield offered for these actions is available only if the employer acted with a good-faith belief that one of those AMMA-sanctioned prohibitions had been violated.  (One of these categories also allows prohibition on possession of drugs on the employerʼs premises or during work hours, but see the June 24, 27, 30, and July 5, 6, and 18, 2011 posts for much more on that issue.)

The third new category immunizes "[a]ctions to exclude an employee from performing a safety-sensitive position, including reassigning the employee to another position or placing an employee on paid or unpaid leave, based on the employerʼs 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 employeeʼs job performance or ability to perform the employeeʼs job duties."

Let that language sink in for a bit.  There is a lot packed in there, and the legislature defined some of those key terms, like "current use of any drug," "good faith," and "impairment."  Weʼll explore those statutory definitions and consider how they should guide the shaping of your policies in future posts.

Thursday, February 2, 2012

ADHS Avoids Groundhog Day By Signaling Dispensaries By Summer

Happy Groundhog Day!  The 1993 movie bearing that name is a favorite.  Arizoneout has something of that same, deja vu feeling that Bill Murray had, because the last post was an admission of error on a prediction, and this post starts with the same confession.

When Arizona Department of Health Services (ADHS) Director Will Humble said the dispensary application process might be further delayed by a pending lawsuit challenging his agencyʼs regulations implementing the Arizona Medical Marijuana Act (AMMA), even after the State's federal lawsuit was dismissed, Arizoneout predicted the dispensaries' legal limbo would extend for many months.

Wrong, wrong.

Under the headline "Dispensaries in AZ this Summer?", Humble's blog on January 25 announced the goal to begin accepting dispensary applications by April. Of 2012.  Humble further said that dispensaries could be operating by July or August.  That would be a year behind schedule, sure, but much faster than Arizoneout thought possible.

What appeared to be a persistent logjam cleared so quickly only because of a decisive and well-reasoned opinion issued a week earlier by Judge J. Richard Gama of the Superior Court for Maricopa County.   Judge Gama spent 22 years as a civil trial lawyer before being appointed to the court in 2000.  He has handled family and juvenile court dockets, but has had a civil docket since 2007.

The case was brought by would-be dispensary applicants who were not eligible to apply for a license because of regulations issued by ADHS.  The agency tried to get the case dismissed on procedural grounds, by arguing that it had complied with the AMMA by issuing regulations on the voter-adopted timetable, even though it had stopped implementing them back in May 2011. 

Judge Gama was having none of that, labeling the State's argument "disingenuous." He ruled that the specific statutory language giving any citizen the right to sue to compel ADHS to implement the dispensary system if it failed to do so within 120 days gave him mandatory jurisdiction over the case.  He added, "it would be a Pyrrhic victory for the voters were the Court to conclude otherwise."

That strong language was followed by an even stronger ruling.  He threw out regulations hinging eligibility to apply for a dispensary license on being an Arizona resident and submitting a personal state income tax return for the previous three years, never filing for corporate or personal bankruptcy, and being current on child support, taxes and penalties, judgment debts to the government, and government subsidized student loans.

The AMMA itself specifies those persons who may be considered for dispensary licenses, and the list of exclusions is short:  no felons, no one whose dispensary certificate has been revoked, and no one under 21.  ADHS claimed authority to impose the other exclusions based on language in the AMMA authorizing regulations to protect against diversion and theft, and setting a cap on the total number of dispensaries. 

Judge Gama was direct in his rejection of those arguments, saying ADHS could not "bootstrap substantive regulations of who may apply" onto its duty to regulatie dispensaries for the purpose of theft and diversion prevention. 

Judge Gama let stand other regulations as "supplementary rules" to protect against theft and diversion that prohibited absentee ownership of 20% or more of a dispensary, and required proof either of ownership of the proposed site or the landlord's consent to use of the site as a dispensary.

The fact that Humble announced within a week of the ruling that his teams were "dotting the i's and crossing the t's" on revised regulations to comply with the ruling and to begin accepting applications immediately is a strong signal that the State does not plan to appeal Judge Gama's decision or to pursue any other legal remedies.  Having lost two cases, the State apparently does not want to prolong its Groundhog Day on medical marijuana.

The case is important for reasons beyond its practical effect of clearing the roadblock and letting the dispensary licensing program go forward.  It is the first opinion interpreting the AMMA, and it will be cited by the lawyers and judges deciding future AMMA cases.  To disagree with Judge Gama, that future judge is going to have to explain why, which is why it is more often the case that the second judge finds the first judge's opinion to be persuasive precedent.

Compassion First LLC v. State established that officials of the State must carry out the will of the voters as expressed in the AMMA.  Sooner than expected, Arizona will have dispensaries.  That means employers will have more employees lawfully using or possessing marijuana among their workforce.  Smart employers will be prepared by knowing their rights and responsibilities.