Tuesday, May 8, 2012

Employers May Determine Marijuana Impairment Based On Symptoms

Employers do not have to tolerate marijuana impairment on their premises or during work hours even when their workforce contains Qualified Patients (QPs) who are authorized to use pot for medical purposes under the Arizona Medical Marijuana Act (AMMA).  The AMMA protects QPs and other licensed cardholders against employment discrimination, but the law specifically states that employers do not have to allow their employees to work under the influence of marijuana.

The problem for employers, then, is how to determine when a QP on the payroll comes to work impaired.  For Arizona employers who adopt a drug testing policy that complies with the Drug Testing of Employees Act, as it was recently amended, the legislature has offered help by defining the meaning of impairment.

The definition itself contains 123 words, but it can be boiled down to just one:  “impairment” means “symptoms.”  In other words, employers are entitled to use their observation skills to determine when an employee is impaired by marijuana such that his or her job performance may be affected.

The definition in the Drug Testing of Employees Act doesn’t stop there, though.  The statute goes on to identify a long list of possible symptoms of impairment, including effects on “speech, walking, standing, physical dexterity, agility, coordination, actions, movement, demeanor, appearance, clothing, and odor.” 

Also on the list of possible symptoms of impairment is “irrational or unusual behavior,” as well as “negligence or carelessness in operating equipment, machinery or production or manufacturing processes,” and “disregard for the safety of the employee or others.”

Even “involvement in an accident that results in serious damage to equipment, machinery or property,” and “disruption of a production or manufacturing process” are statutory symptoms of impairment, as is “any injury to the employee or others.”

Finally, the definition contains a catchall phrase:  “other symptoms causing a reasonable suspicion.”

The clear intent of this legislation is to give employers maximum leeway to make a good-faith determination that an employee is impaired by medical marijuana on the job.  Remember, however, that only employers who adopt a drug testing policy in compliance with the Act will be able to claim the benefits of this generous definition of impairment.

The Drug Testing of Employees Act applies not just to marijuana, however.  While the legislature may have been motivated by the voters’ adoption of the AMMA in amending the Act, the definition of impairment had to encompass all kinds of potentially impairing drugs as well as alcohol.

In future posts, we will examine the science of marijuana impairment.  It will be interesting to see whether there is evidence that marijuana can cause all of the impairments included within this statutory definition.

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