Legislature tackles pot in the workplace

In proposed law, employers will be protected by 'good faith' actions

PHOENIX - The Arizona Department of Health Services and the Legislature are trying to clarify when an employer can take action against an employee under the influence of medical marijuana.

Employers have been raising concerns about how they will determine if an employee is under the influence of medical marijuana since before the Arizona Medical Marijuana Act passed in November. According to the act, an employer cannot refuse to hire, discriminate against or fire an employee just because they have a medical marijuana card or because they test positive for marijuana and have a medical marijuana card, unless the employee was using, possessed or was under the influence of the drug while at work.

According to ADHS Director Will Humble, House Bill 2541 attempts to clarify when an employer can take action against an employee they believe in good faith is under the influence of marijuana while on the job.

First, an employer must have written policy on drug and alcohol use by employees, what substances employees will be tested for, a description of the testing methods and the consequences of refusing to take a test. The bill has passed the House and moved to the Senate.

According to the bill, an employer is allowed to take action against an employee if they believe in good faith that the employee has used or possessed any drug while on the employer's property or during the hours of employment, or the employee was impaired while at work or at the workplace.

Good faith is defined as a "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." It may be based on: observed behavior; information provided by a reliable witness; written, electronic or verbal statements; video surveillance; records of government agencies, law enforcement or courts; results of a test for the use of alcohol or drugs; or other information reasonably believed to be reliable or accurate. That information can also include drug warning labels or other instructions for the use of the drug or information from a physician or pharmacist.

According to the bill, 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. Those symptoms include problems with speech, walking, standing, physical dexterity, agility; unusual behavior;

negligence or carelessness in operating equipment or manufacturing processes; disregard for the safety of the employee or others; involvement in an accident that results in serious damage to equipment, property, or a disruption of production or an injury to the employee or others; or other symptoms causing a reasonable suspicion of the use of drugs or alcohol.

The bill also allows an employer to take action against an employee, including firing them, based on the fact that they believe an employee is under the influence of marijuana while on the job.

It also allows a employer to remove an employee from a safety-sensitive position based on the 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 affect the safety or health of the employee or others. An employee can be reassigned to a different position or placed on paid or unpaid administrative leave.

A safety-sensitive position is defined as any job that requires the operation of a motor vehicle, equipment or power tools; repairing, maintaining or monitoring the performance or operation of any equipment where a malfunction of the equipment could result in injury or damage to property; performance of duties in a residential or commercial premises of a customer, supplier or vendor; or handling food or medicine.

The bill also defines a safety-sensitive position as any occupation regulated by the state under title 32 of the Arizona Revised Statutes which includes architects, engineers, geologists, contractors, barbers, certified public accountants, doctors and nurses, funeral directors and embalmers, real estate agents, pharmacists, private investigators, security officers and more.

It also defines current drug use as any drug use that has occurred recently enough to justify an employer's reasonable belief that involvement with drugs is ongoing. It's also not limited to any specific time frame and "depends on the facts of each individual case."

HB 2541 also protects employers from legal action if the employer acted in good faith and allows them to implement monitoring measures to supervise job performance of an employee, move an employee to a different position or suspend or fire an employee.

The bill also includes state and local governments as employers.

A second house bill involving medical marijuana, HB 2585, would require the Board of Pharmacy's controlled substances monitoring program database to include people who have a medical marijuana card issued by ADHS. The database is a list of patients who are taking schedule II, III and IV controlled prescription drugs. The idea is to prevent the abuse of some highly addictive prescription drugs. Including the information of medical marijuana patients in the database allows doctors to make more informed decisions on how to treat their patients, according to Humble.