The two-week application period for medical marijuana dispensaries closed at the end of last month, and the results bode well for most Qualified Patientsʼ (QPs) ability readily to access to consumer cannabis products within the year.
The Arizona Medical Marijuana Act (AMMA) authorizes a limited number of non-profit dispensaries that can cultivate marijuana and sell it to QPs in various forms. Implementation of this part of the AMMA was on hold for more than nine months, thanks to litigation initiated first by the State and then another suit filed by would-be dispensary applicants, who challenged parts of the regulatory scheme implemented by the Arizona Department of Health Services (ADHS) , and won some victories. You can read about the outcome of the litigation in posts from January 5, February 2, and May 17, 2012.
ADHS is now moving forward with full implementation. It set a two-week period for the initial round of dispensary applications, and by its own rules determined that it would only accept dispensary applications once per year thereafter. So folks who did not meet the deadline this year cannot even apply now until sometime in 2013.
The AMMA only allows one medical marijuana dispensary for every 10 licensed pharmacies in the state, which amounts to approximately 126. ADHS just happens to have a map that divides the state into 126 areas for health analysis − Community Health Analysis Areas (CHAA). ADHS is going to award just one dispensary certificate per area in this first year.
A total of 484 dispensary applications came in by the deadline. ADHS is now reviewing them, and will award certificates on August 7.
There were 27 CHAAs that did not draw a single dispensary applicant. Those CHAAs are primarily in rural areas, including the stateʼs many Native American reservations. You can find a color-coded map showing the number of applicants per CHAA on the ADHS website.
One of the reasons that some of the least populous areas of the state did not draw a single dispensary application is financial. The ADHS regulations required the prospective dispensary to have $150,000 in the bank at least 30 days before the date of the application. The rural areas are also some of the stateʼs poorest regions.
They also generally happened to be the areas with the fewest QPs, meaning the smallest customer base. The dispensaries are supposed to be non-profits, but the large number of applicants for the areas with the most QPs signals that the would-be dispensary operators hope to break even while paying themselves well for their services.
The Estrella CHAA drew the most applications − 16. That's an area in southwest Phoenix. Four other CHAAs had 13 applicants, Flagstaff East, Yavapai County Northeast, Scottsdale North, and Tempe North.
The really happy dispensary applicants are the lucky 24 who are the only ones in a CHAA. They are guaranteed a dispensary certificate if they meet the requirements of the AMMA and its implementing regulations. For the CHAAs with multiple applicants, ADHS will conduct a lottery on August 7 and choose the winner at random from among all qualified applicants.
There are still many hurdles dispensaries will have to clear after winning the certificates. But slowly and surely, Arizona is moving toward easy access to quality marijuana products for most QPs, without them having to grow their own.
And that surely means more marijuana use by folks in Arizonaʼs places of work.
Thursday, June 7, 2012
Thursday, May 17, 2012
Timely Court Ruling Keeps Dispensary Application Process on Track
The Honorable Richard Gama, Judge of the Maricopa Superior Court, has again acted again to ensure Arizona voters that the Arizona Medical Marijuana Act (AMMA) will be implemented. In a February 2, 2012 post, we highlighted Judge Gama’s first in the state interpretation of the AMMA in the Compassion First v. Arizona case.
It was Judge Gama’s ruling, issued in January 2012, that cleared the way for the dispensary process to begin. He ruled again in that case on May 8, 2012. In that case, he characterized his earlier ruling in his own words. In January, he did “precisely” what the would-be dispensary applicants who sued asked, and ordered the State “to promptly implement the AMMA.”
He simultaneously threw out regulations that required dispensary applicants to be an Arizona resident who has submitted a personal state income tax return for the previous three years, never filing for corporate or personal bankruptcy, and is current on child support, taxes and penalties, judgment debts to the government, and government subsidized student loans. Judge Gama found that those regulations exceeded the limited authority given to ADHS by the AMMA to issue regulations to prevent theft and diversion.
In May, Judge Gama stopped the dispensary applicants who brought the case from coming back with a new challenge to another regulation requiring a medical director. He did not reach the merits of the claim, ruling on grounds of interest only to litigation attorneys like me. So there may be future challenges to the medical director requirement.
Arizona Department of Health Services (ADHS) Director Will Humble believes that the medical director requirement is a “key component to making sure that future dispensaries act in the best interest of patients and prevent recreational diversion.”
The timing of the ruling allowed ADHS to move forward with the medical director requirement for the first dispensary application period, which opened May 14 and will last for only two weeks.
Seven applications were dropped off in the first two hours they were accepted, and there were 18 after two days, and 32 after three days.
The AMMA sets the number of dispensaries as a fraction of the number of pharmacies in the state, 1 dispensary for every 10 pharmacies, with the caveat that there can be at least one per county. ADHS has decided to issue 126, one for every Community Health Analysis Area (CHAA), a geographic area defined by the agency for various disease monitoring programs.
Humble was candid that the intent of the system was to encourage dispensary applicants to “think rural.” The rules allowed dispensaries to transfer marijuana on a wholesale market, with the hope that rural dispensaries would also take up cultivation, keeping the grow operations out of Arizona’s urban areas.
Another rule allows dispensary operators to move anywhere in the state after three years. The hope clearly was that there would be applicants for each of the 126 CHAAs. That also meant that fewer Qualified Patients (QP) could grow their own, as cultivation is allowed by the AMMA only for QPs who do not live within 25 miles of a dispensary.
So how’s that working out? So far, the applicants are clustered in Arizona’s urban areas. The most so far are from the Flagstaff area, 12 in its 3 CHAAs, two of which have 5 and 6 applicants. So far, there are only 4 from the greater Phoenix area, and two from Tucson. There are many rural areas with zero so far.
It was Judge Gama’s ruling, issued in January 2012, that cleared the way for the dispensary process to begin. He ruled again in that case on May 8, 2012. In that case, he characterized his earlier ruling in his own words. In January, he did “precisely” what the would-be dispensary applicants who sued asked, and ordered the State “to promptly implement the AMMA.”
He simultaneously threw out regulations that required dispensary applicants to be an Arizona resident who has submitted a personal state income tax return for the previous three years, never filing for corporate or personal bankruptcy, and is current on child support, taxes and penalties, judgment debts to the government, and government subsidized student loans. Judge Gama found that those regulations exceeded the limited authority given to ADHS by the AMMA to issue regulations to prevent theft and diversion.
In May, Judge Gama stopped the dispensary applicants who brought the case from coming back with a new challenge to another regulation requiring a medical director. He did not reach the merits of the claim, ruling on grounds of interest only to litigation attorneys like me. So there may be future challenges to the medical director requirement.
Arizona Department of Health Services (ADHS) Director Will Humble believes that the medical director requirement is a “key component to making sure that future dispensaries act in the best interest of patients and prevent recreational diversion.”
The timing of the ruling allowed ADHS to move forward with the medical director requirement for the first dispensary application period, which opened May 14 and will last for only two weeks.
Seven applications were dropped off in the first two hours they were accepted, and there were 18 after two days, and 32 after three days.
The AMMA sets the number of dispensaries as a fraction of the number of pharmacies in the state, 1 dispensary for every 10 pharmacies, with the caveat that there can be at least one per county. ADHS has decided to issue 126, one for every Community Health Analysis Area (CHAA), a geographic area defined by the agency for various disease monitoring programs.
Humble was candid that the intent of the system was to encourage dispensary applicants to “think rural.” The rules allowed dispensaries to transfer marijuana on a wholesale market, with the hope that rural dispensaries would also take up cultivation, keeping the grow operations out of Arizona’s urban areas.
Another rule allows dispensary operators to move anywhere in the state after three years. The hope clearly was that there would be applicants for each of the 126 CHAAs. That also meant that fewer Qualified Patients (QP) could grow their own, as cultivation is allowed by the AMMA only for QPs who do not live within 25 miles of a dispensary.
So how’s that working out? So far, the applicants are clustered in Arizona’s urban areas. The most so far are from the Flagstaff area, 12 in its 3 CHAAs, two of which have 5 and 6 applicants. So far, there are only 4 from the greater Phoenix area, and two from Tucson. There are many rural areas with zero so far.
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.
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.
Monday, April 30, 2012
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 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.
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.
Monday, April 16, 2012
Medical Marijuana Fuels Lottery Fever For Dispensary License
A birthday present from Arizona Department of Health Services (ADHS) Director Will Humble awoke Arizoneout from its long winter's nap with a newfound commitment to keep those posts coming on a more regular basis. Humble's blog post on April 11, 2012 − yes, that is the anniversary of Dinita James' birth − said his agency was dropping the flag on the race to apply for a dispensary license.
The demands of my law practice and other professional commitments seemed to call me away from blogging about the Arizona Medical Marijuana Act (AMMA) and its impact on workplaces in the state during the first quarter of 2012. On starting my own personal new year, I had resolved to get back on the blog, with a goal of one or two posts a week.
So the email announcing Humble's blog post seemed to hit my inbox with karmic significance. Full implementation of the AMMA may be in sight, barring another litigation explosion or a raid by the feds. More Arizonans are bound to seek ID cards as Qualified Patients (QP) authorized to use medical cannabis if there are stores where they can go buy the stuff, or brownies and milkshakes containing it.
More QPs mean more issues about marijuana for Arizona employers to face. More need for Arizoneout, then, too.
ADHS will start accepting dispensary applications on May 14, and the window to apply is only 11 days.
ADHS will review the applications as they come in, and will issue registration certificates on August 7. There's another certification and inspection required before dispensaries can open, but it appears likely that some dispensaries will be up and running long before the end of 2012.
One post Arizoneout did make during 1Q 2012 was to announce the clearing of the litigation logjam that had interrupted implementation of the AMMA. The event that Humble called the flag drop was the filing of revised regulations with the Secretary of State. Faced with a court order to strike several selection criteria ADHS had been planning to use in awarding dispensary licenses and to move forward to implement the law, Humble said that's "what we're doing."
If there are competing applicants for a dispensary license in a given territory, ADHS will determine the winner by random draw. Megabonus for the winners!
The demands of my law practice and other professional commitments seemed to call me away from blogging about the Arizona Medical Marijuana Act (AMMA) and its impact on workplaces in the state during the first quarter of 2012. On starting my own personal new year, I had resolved to get back on the blog, with a goal of one or two posts a week.
So the email announcing Humble's blog post seemed to hit my inbox with karmic significance. Full implementation of the AMMA may be in sight, barring another litigation explosion or a raid by the feds. More Arizonans are bound to seek ID cards as Qualified Patients (QP) authorized to use medical cannabis if there are stores where they can go buy the stuff, or brownies and milkshakes containing it.
More QPs mean more issues about marijuana for Arizona employers to face. More need for Arizoneout, then, too.
ADHS will start accepting dispensary applications on May 14, and the window to apply is only 11 days.
ADHS will review the applications as they come in, and will issue registration certificates on August 7. There's another certification and inspection required before dispensaries can open, but it appears likely that some dispensaries will be up and running long before the end of 2012.
One post Arizoneout did make during 1Q 2012 was to announce the clearing of the litigation logjam that had interrupted implementation of the AMMA. The event that Humble called the flag drop was the filing of revised regulations with the Secretary of State. Faced with a court order to strike several selection criteria ADHS had been planning to use in awarding dispensary licenses and to move forward to implement the law, Humble said that's "what we're doing."
If there are competing applicants for a dispensary license in a given territory, ADHS will determine the winner by random draw. Megabonus for the winners!
Thursday, March 1, 2012
“Current Use” Is Trigger For Excluding QPs From Safety-Sensitive Positions
The Arizona Medical Marijuana Act (AMMA) allows employers to prohibit Qualified Patients (QP) in their work force from being impaired by medical pot during work hours or on the premises. The 2011 amendments to the Drug Testing of Employees Act is designed to let employers be more aggressive in excluding QPs from performing safety-sensitive positions if they are engaged in the “current use” of medical cannabis.
The way the Arizona Legislature has done this is by expanding the immunity from litigation offered to employers who comply with the Drug Testing of Employees Act, as we explained in a February 13, 2012 post . The immunity extends to employers who exclude a worker from safety-sensitive positions based on a good-faith belief that the worker is engaged in the “current use of any drug.”
So what does “current use” of medical marijuana mean? The Drug Testing of Employees Act defines it as “drug use that has occurred recently enough to justify an employer’s reasonable belief that involvement with drugs is ongoing.” A.R.S. § 23-493(2). The statute goes on to state, “Current use of any drug is not limited to any specific time frame and depends on the facts of each individual case.”
The transparent intention of the legislature is to allow employers to equate a positive drug test for marijuana metabolites with “current use.” Remember that the AMMA itself prohibits employment discrimination against a QP based solely on a positive drug test for marijuana components or metabolites, without proof that the QP used marijuana on the premises or during work hours. A.R.S. § 36-2813(B)(2).
Employers who want to exclude QPs from safety-sensitive positions would be well-advised to craft their drug testing policies so that a positive drug test for marijuana constitutes conclusive evidence of “current use.”
The way the Arizona Legislature has done this is by expanding the immunity from litigation offered to employers who comply with the Drug Testing of Employees Act, as we explained in a February 13, 2012 post . The immunity extends to employers who exclude a worker from safety-sensitive positions based on a good-faith belief that the worker is engaged in the “current use of any drug.”
So what does “current use” of medical marijuana mean? The Drug Testing of Employees Act defines it as “drug use that has occurred recently enough to justify an employer’s reasonable belief that involvement with drugs is ongoing.” A.R.S. § 23-493(2). The statute goes on to state, “Current use of any drug is not limited to any specific time frame and depends on the facts of each individual case.”
The transparent intention of the legislature is to allow employers to equate a positive drug test for marijuana metabolites with “current use.” Remember that the AMMA itself prohibits employment discrimination against a QP based solely on a positive drug test for marijuana components or metabolites, without proof that the QP used marijuana on the premises or during work hours. A.R.S. § 36-2813(B)(2).
Employers who want to exclude QPs from safety-sensitive positions would be well-advised to craft their drug testing policies so that a positive drug test for marijuana constitutes conclusive evidence of “current use.”
Monday, February 13, 2012
Expansion Of Employer Immunity For Actions To Keep Medical Cannabis Users Out Of Safety-Sensitive Positions
In a post late last year, Arizoneout explained how broadly the state legislature reached in giving employers discretion to attach the safety-sensitive label to certain job positions. Despite the broad protections against workplace discrimination that the Arizona Medical Marijuana Act (AMMA) provides to Qualified Patients (QPs), the legislature wants employers to be able to keep QPs out of safety-sensitive positions when they reasonably believe the QPʼs use of medical cannabis might subject the employer to liability.
Hereʼs how the legislature has tried to give employers this ability to do what the AMMA seems to prevent employers from doing, and why it had to be done under the Drug Testing of Employees Act. The 2010 amendments to the Act expanded the liability shield already contained within it to actions employers take to get workers using not just medical cannabis but other impairing drugs out of safety-sensitive positions.
The original language of the liability shield was titled, "Employer protection from litigation," and read as follows: "No cause of action is or may be established for any person against an employer who has established a policy and initiated a testing program in accordance with this article for any of the following."
The list of immunized conduct included the expected − actions taken in good faith based on positive test results, failure to test, to test for a specific substance, or to detect a substance or condition, and termination of any program or policy on testing or substance abuse prevention.
The amendments in 2011 that were targeted at the AMMA added three new categories of employer conduct that the legislature wanted to immunize. Two were the very policies that the AMMA itself allowed employers to have: prohibitions on use or being impaired on the employerʼs premises or during work hours. The immunity shield offered for these actions is available only if the employer acted with a good-faith belief that one of those AMMA-sanctioned prohibitions had been violated. (One of these categories also allows prohibition on possession of drugs on the employerʼs premises or during work hours, but see the June 24, 27, 30, and July 5, 6, and 18, 2011 posts for much more on that issue.)
The third new category immunizes "[a]ctions to exclude an employee from performing a safety-sensitive position, including reassigning the employee to another position or placing an employee on paid or unpaid leave, based on the employerʼs 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 employeeʼs job performance or ability to perform the employeeʼs job duties."
Let that language sink in for a bit. There is a lot packed in there, and the legislature defined some of those key terms, like "current use of any drug," "good faith," and "impairment." Weʼll explore those statutory definitions and consider how they should guide the shaping of your policies in future posts.
Hereʼs how the legislature has tried to give employers this ability to do what the AMMA seems to prevent employers from doing, and why it had to be done under the Drug Testing of Employees Act. The 2010 amendments to the Act expanded the liability shield already contained within it to actions employers take to get workers using not just medical cannabis but other impairing drugs out of safety-sensitive positions.
The original language of the liability shield was titled, "Employer protection from litigation," and read as follows: "No cause of action is or may be established for any person against an employer who has established a policy and initiated a testing program in accordance with this article for any of the following."
The list of immunized conduct included the expected − actions taken in good faith based on positive test results, failure to test, to test for a specific substance, or to detect a substance or condition, and termination of any program or policy on testing or substance abuse prevention.
The amendments in 2011 that were targeted at the AMMA added three new categories of employer conduct that the legislature wanted to immunize. Two were the very policies that the AMMA itself allowed employers to have: prohibitions on use or being impaired on the employerʼs premises or during work hours. The immunity shield offered for these actions is available only if the employer acted with a good-faith belief that one of those AMMA-sanctioned prohibitions had been violated. (One of these categories also allows prohibition on possession of drugs on the employerʼs premises or during work hours, but see the June 24, 27, 30, and July 5, 6, and 18, 2011 posts for much more on that issue.)
The third new category immunizes "[a]ctions to exclude an employee from performing a safety-sensitive position, including reassigning the employee to another position or placing an employee on paid or unpaid leave, based on the employerʼs 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 employeeʼs job performance or ability to perform the employeeʼs job duties."
Let that language sink in for a bit. There is a lot packed in there, and the legislature defined some of those key terms, like "current use of any drug," "good faith," and "impairment." Weʼll explore those statutory definitions and consider how they should guide the shaping of your policies in future posts.
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