In March, we blogged about the new Arizona Medical Marijuana Act and the confusion the new law was sure to create for Arizona employers who have employees who are medical marijuana users. Arizona’s legislature responded to the concerns and enacted House Bill 2541, which clarifies when employers may terminate or take other adverse actions against medical marijuana users. Governor Brewer signed the bill on April 29. The bill will go into effect on July 20, but retroactive to April 12.
Under the new law, which amended Arizona’s drug testing statute, Arizona employers may refuse to allow workers to perform safety-sensitive jobs based on a good faith belief that the employee is currently using a drug that could cause an impairment or decrease the employee’s job performance or duties and may discipline or terminate medical marijuana users when there is a good faith belief that the employee improperly possessed or was impaired by marijuana while at work or during work hours.
The statute defines terms like “good faith” and “impairment” to help employers understand better the extent of their discretion. An employer may base a “good faith” belief that an employee was either impaired while working or during work hours or used or possessed drugs while on the employer’s premises or during work hours on several factors, including observed conduct, information reported by a reliable person (including a person who witnessed the use or possession of drugs at work), written, electronic or verbal statements, lawful video surveillance, drug test results or other information reasonably believed to be reliable or accurate.
Under the statute, “impairment” means symptoms that an employee while working may be under the influence of drugs or alcohol that may decrease or lessen the employee’s performance of his or her job duties, including symptoms of speech, walking, standing, dexterity, agility, coordination, actions, movement, demeanor, appearance, clothing, odor, irrational or unusual behavior, negligence or carelessness in operating equipment, machinery or production or manufacturing processes, disregard for the safety of the employee or others, involvement in an accident causing serious damage to equipment, machinery or property, disruption of a production or manufacturing process, any injury to the employee or others or other symptoms causing a reasonable suspicion of the use of drugs or alcohol.
The statute also allows employers to utilize a verification system to be established by the Arizona Department of Health Services to enable employers to verify registry of medical marijuana identification cards. The employer may only use they system to verify a card provided to the employer by an employee or applicant who has received a conditional offer of employment.
Although the new law provides helpful clarification, employers still need to adhere to the medical marijuana law’s nondiscrimination provisions and should be prepared to reasonably accommodate medical marijuana users to the extent they are not impaired at work or do not improperly possess drugs at work. The new statute also provides employers with an opportunity to update their drug and alcohol testing policies so employers can take advantage of the discretion the new law provides.