April 2011

Bill to Help you Navigate Change in Law Speeds Through Legislature

Originally posted in the Arizona Employment Law Letter, April 2011
By Dinita James

The Arizona House of Representatives passed House Bill (HB) 2541 on March 7, 2011, by a 56-3 vote, making it seem likely that Arizona employers will have the aid of some additional legislation to clarify their rights and duties under the Arizona Medical Marijuana Act.

HB 2541 would amend several provisions of Arizona's employee drug- testing statute. The existing provisions in Title 23 of Arizona Revised Statutes allow employers to implement a drug-testing program pursuant to a written policy. The law also currently allows a drug-testing policy to provide consequences for a refusal to participate in testing and for having a positive drug test, including termination or other adverse employment actions.

On its face, the existing law appears to conflict with Proposition 203, enacted by the voters in the November 2010 general election as the Arizona Medical Marijuana Act. The Act prohibits an employer from discriminating in hiring, terminating, or imposing any condition or otherwise penalizing a person based on his status as a medical marijuana cardholder or based on a cardholder's positive drug test for marijuana metabolites, unless he used, possessed, or was impaired by marijuana on the premises or during the hours of employment.

Key Provisions of Bill

HB 2541 includes provisions:
  • allowing an employer to take action against an employee based on a good-faith belief that she used, possessed, or was impaired by any drug while on the employer's premises or during the hours of employment;
  • allowing an employer to exclude an employee from performing safety-sensitive work based on a good-faith belief that she is engaged in the current use of any drug, whether it's legal, prescribed by a physician, or otherwise, if the drug could cause an impairment or decrease her job performance (allowable actions to exclude the employee from performing the safety-sensitive position include reassignment to another position and putting her on paid or unpaid leave);
  • defining "good-faith belief" to include the results of a test for the use of alcohol or drugs, statements by the employee, research on the Internet, or other information the employer believes to be reliable; and
  • providing that good faith does not include a belief formed by gross negligence, which means the employer has the duty to investigate.
Supporters, Opponents Weigh In

The Marijuana Policy Project, an advocacy group that was the primary proponent of Proposition 203 in Arizona, is opposing HB 2541. Its website notes that the bill seemingly would allow termination of employment based on a positive drug test, which would contradict the explicit language of the voter-approved initiative.

The director of the Arizona Department of Health Services, Will Humble, supports HB 2541. In his blog, he states that the bill "goes a long way towards helping employers keep the job site safe and gives them clear direction when they have an employee that is a medical marijuana cardholder."

Bottom Line

While HB 2541 could run into opposition in the Arizona Senate, its quick and near-unanimous passage in the House bodes well for employers getting some help in dealing with the workplace issues presented by the Arizona Medical Marijuana Act. We will be monitoring legislative developments and reporting in a future issue on the fate of HB 2541.