Thursday, March 1, 2012

“Current Use” Is Trigger For Excluding QPs From Safety-Sensitive Positions

The Arizona Medical Marijuana Act (AMMA) allows employers to prohibit Qualified Patients (QP) in their work force from being impaired by medical pot during work hours or on the premises.  The 2011 amendments to the Drug Testing of Employees Act is designed to let employers be more aggressive in excluding QPs from performing safety-sensitive positions if they are engaged in the “current use” of medical cannabis.

The way the Arizona Legislature has done this is by expanding the immunity from litigation offered to employers who comply with the Drug Testing of Employees Act, as we explained in a February 13, 2012 post .  The immunity extends to employers who exclude a worker from safety-sensitive positions based on a good-faith belief that the worker is engaged in the “current use of any drug.”

So what does “current use” of medical marijuana mean?  The Drug Testing of Employees Act defines it as “drug use that has occurred recently enough to justify an employer’s reasonable belief that involvement with drugs is ongoing.”  A.R.S. § 23-493(2). The statute goes on to state, “Current use of any drug is not limited to any specific time frame and depends on the facts of each individual case.”

The transparent intention of the legislature is to allow employers to equate a positive drug test for marijuana metabolites with “current use.”  Remember that the AMMA itself prohibits employment discrimination against a QP based solely on a positive drug test for marijuana components or metabolites, without proof that the QP used marijuana on the premises or during work hours.  A.R.S. § 36-2813(B)(2).

Employers who want to exclude QPs from safety-sensitive positions would be well-advised to craft their drug testing policies so that a positive drug test for marijuana constitutes conclusive evidence of “current use.”

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