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Governor Jan Brewer Signs HB 2541 Into Law Affecting Employers’ Rights Under the Medical Marijuana Act

Labor & Employment Law Alert Lyzzette M. Bullock

On April 29, the governor of Arizona signed into law HB 2541, giving employers protection from litigation for certain actions an employer takes after it has established a drug policy and testing program in accordance with Arizona law. The legislature created HB 2541 in response to the recently enacted Medical Marijuana Act, which legalizes the use of medical marijuana, but provides little direction to employers about how they can ensure a safe workplace when their employees are lawful medical marijuana users. HB 2541 purports to give employers greater latitude to take action against employees suspected of being impaired by drugs or alcohol at work, including by excluding current drug users from safety-sensitive positions.

The Medical Marijuana Act and Its Non-Discrimination Provision

The Medical Marijuana Act contains a non-discrimination provision which prevents employers from discriminating against or penalizing employees based on their status as medical marijuana cardholders. Two exceptions apply.

First, an employer may discriminate against or penalize a cardholder if failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or regulations. However, neither of the two federal laws that govern the most workers - the Federal Drug-Free Workplace Act and the Omnibus Transportation Employee Testing Act - require that an employer discipline an employee who tests positive for drugs or who is impaired in the workplace. This means that most employers subject to federal laws regarding drugs in the workplace should not ignore the non-discrimination provision of the Medical Marijuana Act. Instead, employers should carefully consider which federal laws and regulations they are subject to and determine whether those laws require them to take disciplinary action against an employee who uses drugs.

The second exception to the non-discrimination provision permits employers to discriminate against an employee if the employee used, possessed or was impaired by marijuana at work or during work hours. The Act does not define "impaired," and consequently, employers have been concerned about their rights to monitor and control employees who are under the influence of medical marijuana, especially those who perform work in safety-sensitive positions.

HB 2541 Gives Employers Greater Latitude to Take Action Against Employees Suspected of Using Drugs

HB 2541 modifies the employer drug testing portion of the Arizona Revised Statutes by amending the definitions section to include, among other things, definitions for "impairment" and "safety-sensitive position." Both are broadly defined and give employers far-reaching authority to identify and effectively supervise employees who are using drugs, including medical marijuana.

"Impairment" is defined as "symptoms that a prospective employee or employee while working may be under the influence of drugs or alcohol that may decrease or lessen the employee's performance of the duties or tasks of the employee's job position." HB 2541 specifically identifies nearly 20 signs and behaviors that indicate impairment, but also gives employers discretion to identify any sign that causes the employer to have a reasonable suspicion of an employee's use of drugs or alcohol.

"Safety-Sensitive Position" is defined as "any job designated by an employer as a safety-sensitive position or any job that includes tasks or duties that the employer in good faith believes could affect the safety or health of the employee performing the task or others." HB 2541 generally identifies safety-sensitive positions to include jobs where the employee operates a motor vehicle, equipment, or machinery, works in the residential or commercial premises of a customer, or prepares or handles food or medicine. It also states that all occupations regulated under Title 32 of the Arizona Revised Statutes are safety-sensitive positions;[1] those include over 40 occupations ranging from architects to massage therapists. This is clearly an expansive view of safety-sensitive positions geared toward covering a wide range of jobs and tasks, and giving employers much greater control over employees than the Medical Marijuana Act allows.

An employer's "good faith" belief means "reasonable reliance on fact, or that which is held out to be factual, without the intent to deceive or be deceived and without reckless or malicious disregard for the truth." That belief can be based on any information reasonably believed to be reliable or accurate, such as observed conduct, behavior or appearance, the results of a drug test, or information reported from a person.

These definitions are important for employers when viewed in light of the substantive portion of HB 2541. That portion protects employers from litigation for certain actions taken against employees suspected of using drugs if the employer has established a policy and initiated a drug testing program in accordance with the statute. Specifically, an employer may not be sued for monitoring, supervising or controlling the job performance of an employee, including suspending or terminating the employee's job, based on the employer's good faith belief that an employee had an impairment while working. Nor may an employer be sued for "actions 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 employer's good faith belief that the employee is engaged in the current use of any drug . . . ."

Employers Should Ensure That Their Drug Testing Policies and Programs Comply With Arizona Law

Employers are only protected from litigation under HB 2541 if their drug policies and programs comply with Title 23, Chapter 2, Article 14 of the Arizona Revised Statutes which is available here: http://www.azleg.gov/ArizonaRevisedStatutes.asp?Title=23. Therefore, employers should review their drug policies and programs to ensure they comply with Arizona law. Employers should also consider amending their policies to reflect how the Medical Marijuana Act affects their employees. We recommend that once these policies are in place, employers train their managers and supervisors in how to recognize signs of impairment and to be diligent about documenting any such signs.

If you have questions about the impact of HB 2541 on your worksite, or if you want help modifying your policies, please feel free to contact Lyzzette Bullock at lyzzette.bullock@quarles.com or your Quarles & Brady attorney.