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.

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