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Reminder for Employers Regarding Employee Rights Under the AMMA

 

The following tips are offered for employers and employees on how to navigate Arizona’s Medical Marijuana Act (“AMMA” or “Act”), but it is important to remember that much of the statute’s meaning has not yet been interpreted by the courts. As the implementation of AMMA takes our laws into uncharted territory, little guidance exists on how courts actually would apply the Act in any given situation. It is always a good idea to consult an employment attorney should any medical marijuana issues arise in your workplace.

  1. The AMMA does not authorize any person to engage in, and does not prevent the imposition of any civil, criminal or other penalties for undertaking any task under the influence of marijuana that would constitute negligence or professional malpractice.

To date, no court decision has addressed the scope of this provision of the AMMA, but presumably, if an employee has a job where being “under the influence” (see discussion below) would amount to negligence or professional malpractice, an employer would be within its rights to discipline that employee for being under the influence while discharging such duties, despite any status as a “card-holder” that is otherwise legally authorized to use marijuana.

  1. Employers cannot refuse to hire an applicant, or take an adverse employment action against an employee, because that applicant or employee is a medical marijuana card holder.

Subject to certain limited exceptions, the AMMA prohibits employers from discriminating against individuals who are legal card-holders. Generally, this means that an employer cannot fire or refuse to hire an individual because of the individual’s status as a card holder.

The main exception to this prohibition allows an employer to refuse to hire or to fire a medical marijuana card holder if the hiring or retention of said individual would cause the employer to lose a monetary or license-related federal benefit. This provision has not been interpreted by any Arizona court, so it is unclear what, exactly, this means. Nonetheless, the intent is plainly to recognize that marijuana remains illegal under federal law, and to carve out an exception for Arizona employers that would suffer a direct harm under federal rules and regulations applicable to their industry if they employed a medical marijuana user. Suffice it to say, however, that this exemption in the AMMA appears to be a pretty high bar. Typically, federal drug-free workplace rules and regulations (like those applicable in the mining and transportation industries, for example) can subject employers to possible fines and penalties for a violation, but not an actual loss of federal money or licensing benefits.

Also, it is worth noting that the AMMA itself allows an employer to discipline even a card-holding employee who “used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of operation.” Another provision of the Act provides that it does not require an employer “to allow the ingestion of marijuana in any workplace or any employee to work while under the influence of marijuana, except that a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.” This seems to be a reference to the fact that, unlike alcohol where an individual is presumed impaired when a certain level of alcohol is present in the blood, marijuana metabolites typically remain present in testable amounts well after most individuals would no longer be considered “impaired.”

So, in reading these two provision together, the relevant inquiry under the AMMA seems to be impairment vs. “under the influence.” The AMMA allows employers to take disciplinary action against card-holding employees only for use, possession or “impairment” at work, unless, as noted above, undertaking a particular task “under the influence” would amount to negligence or professional malpractice or lead to the loss of federal monetary or licensing benefits.

This distinction between being “impaired” at work versus “under the influence” sets up a possible conflict with some federal drug-free workplace rules. For example, the Mine Safety & Health Administration has a rule that provides, “persons under the influence of alcohol or narcotics shall not be permitted on the job.” This federal rule (applicable to mine operators) prohibits employees from being “under the influence” on the jobsite. This appears to be different from, and more stringent than, being “impaired” under the AMMA. So unless the mining employer can also show it would lose a monetary or license-related benefit under federal law if it hired or retained a card-holding employee, this rule appears to conflict with the AMMA. This apparent conflict has not yet been addressed in Arizona courts.

  1. Employers cannot refuse to hire, discipline, or fire a card-holding employee just because the employee tests positive for marijuana.

Arizona employers are permitted to conduct drug testing of their employees and applicants. Nonetheless, the AMMA protects employees from the potentially adverse employment consequences of a positive test for marijuana if the employee is a medical marijuana card-holder. Again, an exception applies if the employee “used, possessed, or was impaired by marijuana” on the premises or during work hours. And again, the key term is “impaired” as opposed to merely testing positive, which is subject to protections.

And the same exception noted above applies here as well – i.e. if the employer would face a loss of federal benefits if they hired or retained an employee who tested positive. Interestingly, the Drug Free Workplace Act does not require employers to test employees or applicants for drug use. It also does not state what an employer subject to the federal act must do if an employee does test positive for marijuana (or any other federally controlled substance).

  1. What is impairment?

As discussed above, as a general rule, an employer may legally discipline a card-holding employee who tests positive for marijuana if there is additional evidence the employee was impaired by marijuana while at work or during working hours. Such evidence of impairment could include, for example, involvement in a workplace accident evidencing negligence, slurred speech, decreased coordination, blood-shot eyes, smell of marijuana. Employers should document such evidence and obtain statements from as many witnesses as possible.

Note: there is no standard way to determine impairment. It is subjective, and no physical test exists like the test for blood alcohol content to accurately test one’s level of impairment. Indeed, law enforcement agencies have long since moved on from subjective testing for alcohol – so called “field tests” – given their general unreliability and high level of training required to be administered in a manner that might be sustained in a court proceeding. However, Arizona employers who act on a good faith belief that the employee has used marijuana at work or was impaired at work are protected from civil liability for actions taken in reliance on such good faith belief. Accordingly, the more evidence that is recorded supporting such “good faith belief” the greater the likelihood that such an employer would be shielded from such civil liability.

Risks for Employers: Because the impairing effects of marijuana use can be long-lasting, employers who become aware of an employee’s marijuana use and permit an employee to continue working could possibly face liability for negligent retention or vicarious liability if that employee injures another employee or third party while on the job. This is particularly true for safety sensitive jobs. So, the Arizona legislature came up with a fix or sorts, as discussed below.

  1. Arizona’s drug testing statute provides a safe harbor for employers with respect to “safety sensitive” positions.

Employers who establish drug testing policies and procedures that comply with the strict requirements of Arizona’s drug testing statute are protected from private causes of action in connection with the employer’s discipline or termination of or refusal to hire a medical marijuana-using employee or job applicant for “safety-sensitive” positions.

Employers must have a good faith belief that the prescribed drug (including medical marijuana) for which the employee or applicant tested positive could cause an impairment or otherwise decrease the employee’s ability to perform his/her job duties.

“Safety-sensitive” means: 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. The statute gives specific examples, including: operating machinery, food handling, and working in any occupation regulated by Title 32, which, interestingly, includes most professional occupations.

  1. Pre-employment considerations:

The AMMA also applies during the hiring process. Employers may not ask a job applicant if he/she is a card-holder, and may not ask about an employee’s “debilitating medical condition” that warranted becoming a card-holder. Employers may ask, however, if the employee is qualified to do the job. If the job has been designated as “safety-sensitive,” with card-holders being ineligible to apply, then the burden is on the employee to accurately relay his/her qualifications, and dishonesty in that regard can be grounds for discipline.

  1. Final Takeaways:

Employers should treat a medical marijuana card-holder who tests positive on a drug test the same way the employer would treat any other applicant who uses a prescription medication.

Note: The Americans with Disabilities Act does not protect individuals currently engaging in the illegal (under federal law) use of drugs. See 42 U.S.C. §12114; 29 C.F.R. § 1630.3.

A policy that allows an employer to terminate a card-holding employee just because he/she tested positive for marijuana violates the AMMA. The Act does not, however, limit an employer’s ability to determine impairment (as long as done in good faith) and impose discipline accordingly. Employers can also discipline employees who refuse to take a drug test.

The Act does not provide any specific penalties for a violation. Accordingly, employees seeking redress for a violation of the AMMA have to rely on Arizona’s Employment Protection Act, which permits employees to pursue claims for wrongful termination where an employer has fired an employee “in violation of a statute of this state.”

Article Written By: Ariel Henderson

Employment Law

AHenderson@nullWaterfallAttorneys.com