Drug Testing And The AMMA

Arizona has had a law governing workplace drug testing since 1994.  Compliance with it is completely voluntary and the Arizona Legislature made it a point of stating in the law that it was not to be construed "to encourage, discourage, restrict, limit, prohibit or require" drug testing in the workplace.

Before the Arizona Medical Marijuana Act (AMMA), there was little incentive for employers to comply with the rather strict terms of the Drug Testing of Employees Act.  That was because the legal risks of noncompliance were rather low.

That fits the national trend.  According to a recent survey of HR professionals conducted by the Society for Human Resources Management, 57 percent of employers conduct pre-employment drug testing of all applicants.  After hiring, however, only 36 percent of employers do any kind of drug testing of current employees.

After the AMMA, however, employers may want to think again about whether to institute a workplace drug testing program that extends to current employees.  The Arizona Legislature gave employers some tools to use in implementing the AMMA in the workplace in the last session, when they amended the Drug Testing of Employees Act.  I wrote about the law, House Bill 2541, as it made its way through the Legislature in two articles in the Arizona Employment Law Letter - April 2011 | June 2011.

In future posts, I will discuss HB 2541's provisions and explain how they may help employers identify and deal legally and effectively with employees working in safety-sensitive positions who are also protected Cardholders under the AMMA.  Remember when we get there that I said "may."  There also are some reasons not to rely too heavily on HB 2541's employer protections, as there is a strong likelihood they will be challenged in court.  Why not?  It seems that almost everything else relating to the AMMA lands in litigation.

A firm understanding of the Drug Testing of Employees Act will aid employers in deciding whether they want to try to take advantage of the help the Arizona Legislature tried to give them.  That is because the price of admission to those protections is adopting and implementing a drug testing policy that complies with all of the requirements of the Drug Testing of Employees Act. 

So my plan is to devote the next few posts to explaining the key requirements of the Drug Testing of Employees Act, and the benefits it offered to employers even before the Legislature adopted HB 2541 earlier this year.  The plan is always subject to news, interesting comments, or other entertaining distractions.  But that is the plan over the next week or so.