Employer Must Act on Good Faith Belief to Claim Liability Shield

When the Arizona Legislature first adopted the Drug Testing of Employees Act in 1994, employers had to act based on a good faith belief to claim the liability shield that was the key benefit of that law.   When lawmakers expanded the Act in 2011 to give employers tools to ease their implementation of the Arizona Medical Marijuana Act (AMMA), they also fine tuned the meaning of  good faith.

Arizoneout explained in detail in a December 9, 2011 post how the liability shield can be used by employers when they act in good faith to exclude Qualified Patients (QPs) from safety-sensitive positions or discipline or discharge QPs whom the employer believes were impaired on the job or used cannabis on the premises or during work hours

In today's post, we consider just what good faith means under the  Drug Testing  of Employees Act.  The original definition in the Act defined good faith as "reasonable  reliance on fact, or that which is held out to be factual, without intent to deceive or be deceived and without reckless or malicious disregard for the truth."  So in plain language, an employer acts in good faith when it doesn't intentionally make up a pretextual reason for its actions or recklessly ignore the truth.

In the 2011 amendments that were tailored to the issues employers face in dealing with medical marijuana in the workplace, the legislature clarified that good faith does not include a belief formed with gross negligence.  In the legal hierarchy of mental states that governs civil and criminal liability, gross negligence is a lower level  of  culpability than evil intent or recklessness. 

So one the one hand, it appears that the legislature was tightening up on when employers could claim they were acting in good faith.  An honest belief that -- say -- a QP used marijuana during work hours would not fall under the liability shield if the employer was grossly negligent in forming that belief.  In that context, gross negligence probably would equate to having no facts to support that belief.

However, other tweaks to the definition of good faith give Arizona employers considerable leeway on  what sorts of evidence they can rely upon in taking adverse employment actions against QPs.  The legislature developed a laundry list of the kinds of things that an employer can rely upon in forming a good faith belief, including:

• the employer's observation of the QP's conduct, behavior, or appearance.
• written, electronic or verbal statements, presumably by the QP him or herself.
• lawful video surveillance.
• records of government and law enforcement agencies or courts.
• results of a test for the use of alcohol or drugs.
• information reported by a person believed to be reliable, including a report by a person who witnessed the use or possession of drugs or drug  paraphernalia at work.

The last one is especially significant, as the apparent intent is to allow the  employer to choose to believe the informant against the QP in a "he said-he said" situation, so long as the employer doesn't have some reason to doubt the credibility of the informant.

The definition of good faith in the Drug Testing of Employees Act also has an extremely broad catchall -- "other information reasonably believed to be reliable or accurate."

This generous definition of good faith is just one more reason employers concerned about workers legally using medical marijuana will have a policy in place that complies with the Drug Testing of Employees Act.