Resolve To Adopt Defensible Workplace Policies On Medical Marijuana

On this the first work day of 2012 in most places of employment, it is an appropriate time to reflect on the past year and resolve to make changes for the year ahead.  In my professional discussions about the Arizona Medical Marijuana Act (AMMA), I find that employers typically have not had to confront the issue and thus are not taking proactive steps to develop policies they can defend.

Nevertheless, the number of Qualified Patients (QPs) licensed by the state to use medical marijuana continues to grow.  The Arizona Department of Health Services (ADHS) has not yet issued its year-end report, but as of November 25, 2011, more than 16,000 QPs had ADHS-issued ID cards making their use and possession of limited quantities of marijuana legal under state law.

According to the U.S. Census bureau, Arizona had 134,000 private, non-farm employer establishments in 2009.  So by a very rough estimation, we should expect that about 10 percent of Arizona employers have a QP among their workers.

There is no one-size-fits-all template for good medical marijuana policies that all employers should adopt.  But here is a good checklist of questions to ask in developing a defensible policy that meets your individual business needs: 

• Do my existing policies prohibit what the AMMA allows employers to prohibit − ingestion of medical marijuana in the workplace and working while impaired by the use of medical marijuana?
• Do I fall within the exemption that allows discrimination against protected AMMA Cardholders, because failing to do so would cause the employer to lose a monetary or licensing related benefit under federal laws or regulations?  The exemption is narrow and applies mainly to certain employees in the transportation industry.  See the July 25 and August 3 posts
• Do I have employees working in such safety-sensitive positions that they need to be transferred out of those positions for the duration of their treatment with medical marijuana? See the December 13 post.  
• What is my existing drug testing policy, and does it comply with the Arizona Drug Testing of Employees Act?  If not, what can I do to bring it into compliance?  See the September 23, 27, 29 and October 7, 12, 19, 21 and 24 posts.
• Do I have a business need to bar my employees from bringing medical marijuana onto the premises and, if so, how can I enforce the policy? See the June 24 and 30 posts.

While it is a complicated analysis, it is one every Arizona employer should undertake.  Arizona workers are using marijuana lawfully for medical purposes.  Resolve in 2012 to stop ignoring that reality.

Nurse’s Suit Alleges Firing In Violation Of AMMA

A for-profit hospice in Cottonwood is now a defendant in a lawsuit over allegations it fired a nurse because of her status as a Qualifying Patient (QP) cardholder under the Arizona Medical Marijuana Act (AMMA).  Whether this is the first case to test the limits of the AMMA’s employment discrimination protections is hard to tell, but it certainly is going to be a closely watched one.

The suit claims that the hospice, Verde Valley Community Hospice, LLC,  hired Esther M. Shapiro in late July 2011.  Shapiro allegedly became a legally registered QP Cardholder the month before she was hired by the hospice.

According to the suit, Shapiro started her employment as a nurse, visiting and caring for hospice patients in their homes, on August 3, 2011.  For reasons not explained in the court papers, Shapiro went through the hospice’s training and orientation program about two weeks after her start date, during which she allegedly was told that she had to pass a “pre-employment” drug screen as a condition of continued employment.

The lawsuit alleges that Shapiro immediately disclosed her QP status to her supervisor, the hospice’s nurse manager, Donna Gould.  Gould allegedly was “visibly upset by the information.”  Shapiro went to the drug testing facility and provided a sample for testing as required.

Here is where the facts take a strange turn.  Shapiro alleges that she was fired the next day by Gould, who allegedly told her that the hospice’s insurance carrier had directed the adverse employment action, because the insurer believed she was too much of a liability risk.  Shapiro does not allege that she was told she had failed the drug test.

Another strange twist occurred a month after Shapiro’s firing, when she received notice from the state Board of Nursing that the hospice had made a complaint against her license.  The hospice allegedly told the Board of Nursing that an unidentified hospice employee had smelled marijuana on Shapiro’s person, and that she had been required to submit to – and presumably failed – a “for cause” drug test. 

Shapiro denies in the suit that she ever had used, possessed, or been under the influence of marijuana on the hospice’s premises or during her working hours.

The hospice has not yet responded to the lawsuit, and it may take many months to sort out the true facts.  But if the allegations are true, the Cottonwood hospice appears to be an Arizona employer who was not prepared to deal with the workplace issues presented by the AMMA.  Arizoneout will monitor the case and provide updates and analyses in future posts.

Arizona legislature adopts expansive definition of safety-sensitive position

When crafting the tools to help employers implement the Arizona Medical Marijuana Act (AMMA) earlier this year, the state legislature tried to be as generous as possible.  Regardless of voters’ adoption of broad employment protections for Qualified Patients (QPs) authorized to use medical cannabis, the legislature wanted to provide a liability shield for employers who excluded the QPs in their workforce from performing safety-sensitive positions.

    Arizoneout explored in a recent post the parameters of this liability shield.  The most important limitation is that the shield is available only to Arizona employers who adopt a testing program that complies with the Drug Testing of Employees Act.  Another important consideration is how employers determine whether a position qualifies as a safety-sensitive one.

    Once again, the legislature tried to be as employer-friendly as possible by giving each employer the discretion to decide just which of its job positions qualified as safety-sensitive.  In addition, the legislature also provided some specifics.

    Jobs qualify as safety sensitive if they include tasks or duties that the employer in good faith believes could affect the safety or health of the employee performing the task or others.  The legislature then gave several examples, including jobs that involve:

• operation of a motor vehicle, or any other equipment, machinery or power tools;
• repairing, maintaining, or monitoring the performance or operation of any equipment, machinery, or manufacturing process, the malfunction or disruption of which could result in injury or property damages;
• performing duties on the premises of a customer, supplier, or vendor; or
• preparing or handling food or medicine.

If that list was not employer-friendly enough, the legislature also included in the definition of safety-sensitive position any occupation regulated pursuant to Title 32 of the Arizona Revised Statutes.  So who does that include?  A whole lot of Arizona employees.

Title 32 is extremely broad, covering just about every occupation for which a state license is required, including all of the medical professions; barbers, cosmetologists, aestheticians, and nail technicians; certified public accountants; collection agency employees; contractors; funeral directors and embalmers; architects, engineers, geologists, landscape architects, and surveyors; real estate brokers and agents; veterinarians and veterinarian technicians; pest control applicators; private investigators; security guards; polygraph examiners; and massage therapists.

It’s hard to think of a job that would not fall in the safety-sensitive category, if an employer chooses to designate it as such.  Whether Arizona courts will be as generous in applying these legislative provisions is something upon which employers likely will not be able comfortably to rely for years to come.

In the meantime, employers should be prepared to justify why they have designated any particular position as so safety-sensitive that a QP using medical marijuana during his or her off-duty hours should be disqualified from performing it.

Nifty New Provisions Offer Employers Shield From AMMA Liability

Earlier this year, the Arizona Legislature tried to help employers with implementation of the Arizona Medical Marijuana Act (AMMA).  The vehicle used was the Drug Testing of Employees Act.  So for Arizona employers who have adopted already or in the future adopt a drug testing program in compliance with the Act, there are some nifty new statutory provisions that may protect them from liability.

Probably the most important new provision relates to safety-sensitive positions.  The Drug Testing of Employees Act always has contained a section designed to protect employers from litigation for the actions they take in response to a positive drug test, as well as for employers’ failure to conduct drug testing or failure to detect a specific drug in particular circumstances.

The 2011 amendments greatly expanded those protections from litigation for employers who take certain actions, including actions to exclude Qualified Patients (QPs) legally using medical marijuana from working in safety-sensitive positions.

One new provision purports to shield an employer who has a drug testing program from liability for any actions the employer takes to exclude an employee from performing a safety-sensitive position, based on the employer’s 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 employee’s job performance or ability to perform the employee’s job duties.”

This new provision is not specific to medical marijuana.  Indeed, employers can rely on this liability shield to exclude employees from safety-sensitive positions while they are on narcotic pain medication or even cough syrup, as two examples.

The new statutory language allows the employer to reassign the employee to another position, presumably one that is not safety-sensitive, or to place the employee on paid or unpaid leave.  This particular statutory provision does not authorize termination, however.

If the statute is valid, then employers who learn that an employee is a QP using medical marijuana can put that employee on unpaid leave for the duration of the employee’s use of medical marijuana, if the employee otherwise would be working in a safety-sensitive position. 

That caveat – if the statute is valid – is very important.  The AMMA adopted by Arizona voters prohibits employers from taking adverse employment actions against a QP because of the QP’s medical use of marijuana.  It is hard to argue that forced unpaid leave is not an adverse employment action. 

It will be up to Arizona courts to determine whether that provision is valid, or whether it is inherently in conflict with the voter-approved AMMA.   If there is an inherent conflict, then the voter-approved AMMA trumps anything the legislators have adopted.

Employment actions short of unpaid leave, however, such as reassignment to a different, not safety-sensitive, position or paid leave, with no reduction in pay or other benefits, likely do fall within the liability shield the legislature adopted earlier this year.

Over several future posts, Arizoneout will delve deeper into the amendments to the Drug Testing of Employees Act that the legislature adopted earlier in 2011 to help employers with the implementation of the AMMA.

Honor Indicates Interesting Ways AMMA Experiment Is Turning Out

Arizoneout is honored to be named one of the top 100 blogs about lawyers and the law as part of the ABA Journal’s 5th Annual Blawg 100.  The Journal of the American Bar Association, the nation’s largest voluntary membership organization for lawyers, judges, and law students, received more than 1,300 nominations for the honor this year.

My thanks to Tony Kessler of M. Lee Smith Publishers, who penned this wonderful word play for the Arizoneout nominating blurb:  “Who would have ever thought that a blawg about medical marijuana in the workplace would take off and reach such dizzying heights? The blawg is indeed creating quite a buzz among Arizona employers and employment law attorneys. Each new installment creates a stash of valuable information that readers can put in their pipe and smoke.”

The Blawg 100 has 12 categories.  Arizoneout is in the category for labor and employment law blogs.  Blawg 100 is also a contest, with the top blogs in each category to be determined by online voting.  Arizoneout would appreciate your vote.  The shield at the right will take you to the voting site, or you can click here.  Registration is required to vote, but it is relatively painless.  Voting ends December 30.

Arizoneout attributes its Blawg 100 honors to the heightened interest in medical marijuana nationally, and especially here in Arizona, as we implement the Arizona Medical Marijuana Act (AMMA) that Arizona voters adopted in November 2010.  It is one of the very few compassionate use laws around the country that includes employment protections for Qualified Patients.

Another sign that medical cannabis is a hot topic nationally:  the medical marijuana industry is now featured on reality TV!  On Thursday, December 1, 2011, the Discovery Channel aired the debut episode of “Weed Wars.”  The show features a California marijuana dispensary, Harborside Health Center in Oakland, CA.

Several versions of the opening episode are available on You Tube.   I’m not sure about the copyright legalities, so I won’t link to those.  The Discovery Channel has lengthy excerpts on its website.

Harborside Executive Director Steve Angelo says the dispensary, which opened in 2006, is the largest on the planet, with more than 94,000 legal patients, and gross sales of $21 million in 2010.  Another interesting tidbit from the opening episode:  all of the employees of Harborside are themselves legal cannabis patients in California.  Now that’s an interesting twist on medical marijuana in the workplace!

Arizoneout will be watching future episodes of “Weed Wars” and in future posts or Tweets will share the highlights that Arizona employers should not miss.

Public Employers Face Extra Drug Testing Limits

Over several recent posts, Arizoneout has been examining the state Drug Testing of Employees Act, as the Arizona Medical Marijuana Act (AMMA) has made adopting a compliant policy a high priority for many employers.  That’s the case thanks to amendments the state legislature made to the Drug Testing of Employees Act earlier this year to ease implementation of the AMMA in Arizona workplaces.

The Drug Testing of Employees Act applies both to public and private employers.  One of the ways the legislature amended the Act was to add into the definition of “employer” subject to its provisions the state of Arizona and all of its political subdivisions.

Before the amendment, the definition explicitly excluded the state and all of its agencies, except for the departments of public safety, corrections, and juvenile corrections, and all political subdivisions of the state.  Thus, public employers are especially new to the Drug Testing of Employees Act’s many technical requirements.  

A September 29, 2011 post discussed the circumstances under which the Drug Testing of Employees Act permits an employer to require employees to submit a sample for drug testing.  The Act specifically authorizes random testing.  In that post, Arizoneout noted that public employers must be aware of additional limits on random testing, and promised to devote another post to that topic.

This is that post.  Before we move on to the other AMMA-specific amendments to the Drug Testing Act that the legislature adopted earlier this year, let’s close this loose end.

Thanks to a 2004 Arizona Supreme Court case coming out the City of Mesa, public employers know that it is a violation Fourth Amendment to the U.S. Constitution to require public employees to undergo random testing.  The case is Petersen v. City of Mesa.   Random testing also may be a violation of Article II, Section 8 of the Arizona Constitution, which provides that “no person shall be disturbed in his private affairs . . . without authority of law.”   The Arizona Supreme Court did not decide that question.

The City of Mesa implemented a drug testing program for its Fire Department in 2001.  The City tested firefighters in four circumstances: (1) upon reasonable suspicion the individual firefighter has abused drugs or alcohol; (2) after an on-the-job accident involving the firefighter; (3) upon the firefighter’s return to duty from an injury or a substance abuse diversion; and (4) “on an unannounced and random basis spread reasonably throughout the calendar year.”

Craig Peterson, a city of Mesa firefighter, filed a pre-emptive lawsuit, challenging only the random testing requirement.  

The Arizona Supreme Court rejected the argument that firefighter was a sufficiently safety-sensitive position to permit suspicionless, unannounced drug testing, when the City of Mesa had offered no evidence of any drug problem among its firefighters.

The City of Mesa argued that the safety-sensitive nature of the position gave it a special need to invade firefighters’ privacy by conducting random testing, based on two  U.S. Supreme Court cases.  One of them, National Treasury Employees Union v. Von Rabb, authorized suspicionless testing of U.S. Customs employees, not on a random basis but upon promotion or transfer to a position directly involved in drug interdiction or requiring the carrying of a firearm.  The other, Skinner v. Railway Labor Executives Ass’n, authorized suspicionless drug testing of railway employees because of their diminished expectation of privacy from working in an “industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness” of railway employees.

According to the Arizona Supreme Court, the Mesa firefighters had a similar diminished expectation of privacy because their job involves safety risks, they are entrusted with protecting the community and their colleagues from danger, and their ability to do their jobs depended on their own health and fitness.  Nevertheless, the court found that the City of Mesa’s generalized interest in deterring and detecting alcohol and drug use among its firefighters was not a sufficiently strong interest to overcome even the lessened privacy interests of the firefighters.

If the safety-sensitive nature of firefighting is not enough to justify random drug testing, then it is hard to imagine a public employee job outside of law enforcement and corrections that would qualify for random drug testing.  As future posts will address, the Arizona Legislature has a vastly different view of what counts as a safety-sensitive position than the state’s highest court.

AMMA After A Year -- Just As Confusing As Last Year

As November 3, 2010 dawned, the electoral fate of the Arizona Medical Marijuana Act (AMMA) was officially too close to call.  The "No" side on Proposition 203, the voter initiative that made the AMMA law, held a 6,000-vote lead.  More than a week later, when all the votes were counted, the "Yes" side led by fewer than 5,000 votes. 

By November 29, just 27 days after the last vote was cast, the Prop 203 victory was certified as official.  Marijuana would be legal for medical purposes in the state.

Upon the anniversary of the AMMA's passage, the AMMA's fate is just as much up in the air, and it does not appear that a resolution will come anywhere nearly as quickly as the 27 days it took to tally the vote with finality.

In the October 27, 2011 issue of the monthly Phoenix New Times, Ray Stern offers a fine summary of the recent federal attacks on the medical marijuana industry in an article titled, "Obama's War on Weed:  In a strange about-face, the President tries to hack medical marijuana off at the knees."  As this post was written, it was the most popular story on the Phoenix New Times website.

Phoenix New Times sells ads to the medical marijuana industry, and discloses that fact in the article.  It is a Village Voice publication, and its perspective is decidedly liberal.  The article's take on the politics -- partisan and not -- rolled up in the medical marijuana debate makes it an entertaining read no matter your political stripe.