Cutting through the Weed(s)

Drug testing in the era of medical marijuana

by Alejandro Pérez

The legalization of marijuana in Arizona has created an exciting buzz in this State. Medical marijuana has proven itself a unique, and potentially lucrative, business endeavor. Medical marijuana has also caused some serious frustrations; this is especially so for employers. Many employers find themselves confused as to whether they can still drug test and, particularly, how to deal with employees who are medical marijuana cardholders.

Federal law poses very few requirements or limitations on employee drug-testing. Thus, Arizona law will usually control whether drug testing is required or prohibited. Employers should familiarize themselves with the Drug Testing Employees Act (the “DTEA”) and, of course, the Arizona Medical Marijuana Act (the “AMMA”). Knowing how to navigate between these two laws is essential for employers.

The DTEA
The DTEA sets forth standards all drug test policies must meet. These include:

  • A statement of the employer’s policy regarding drug and alcohol use by employees;
  • A description of those employees or prospective employees who are subject to testing;
  • The circumstances under which testing may be required;
  • The substances as to which testing may be required;
  • A description of the testing methods and collection procedures to be used;
  • The consequences of a refusal to participate in the testing;
  • Any adverse personnel action that may be taken based on the testing procedure or results;
  • The right of an employee, on request, to obtain the written test results; and explain a positive test result in a confidential setting; and
  • A statement of the employer’s policy regarding the confidentiality of the test results.

So long as the drug-testing policy meets these requirements, the DTEA holds employers responsible for their own policies. Accordingly, employers who set their bar higher than what the law requires must meet the standards of their own policies.

The DTEA allows employers to require collection and testing of samples for any job-related purpose consistent with business necessity. The phrase “consistent with business necessity” typically includes impairment, workplace accidents, safety, productivity and reasonable suspicion. The DTEA also allows employers to require employees to undergo drug testing on a uniformly applied randomized or “chance basis” policy.

Under the DTEA, failing or refusing to take a drug test can result in termination, suspension, refusal to hire, rehabilitation or other adverse employment actions. An exception to this exists, of course, for medical marijuana cardholders.

The AMMA
The AMMA protects rights of cardholders. Under the AMMA, an employer may not refuse to hire, fire or penalize an employee or prospective employee due to their cardholder status or for testing positive for marijuana unless failure to do so would cause the employer to lose a monetary or license-related benefit under federal law. The AMMA, however, does not require employers to allow employees to possess marijuana at the workplace, ingest marijuana in the workplace or work while under the influence of marijuana.

Compliance with the AMMA is crucial for employers. In Whitmire v. Wal-mart, the Arizona District Court established the AMMA allows medical marijuana cardholders to sue their employers if their employers violate their right to use marijuana. Whitmire involved an employee who suffered an injury while working. In accordance with their policy, Wal-mart required the employee to undergo a drug test. The employee, who was a medical marijuana cardholder, failed her drug test because marijuana metabolites were present in her urine. Walmart terminated the employee and failed to make an exception for her even though she reported she was a cardholder. Whitmire stands for the proposition that employers with a “zero tolerance” policy for marijuana use, without exceptions for cardholders, expose themselves to civil liability.

Whitmire is also significant because it held a drug test that only proves recent drug use is not enough to form a good faith belief of impairment in the workplace. Therefore, employers should thoroughly document any observations of impairment and gather any supporting evidence immediately.

Thus, while the laws relating to medical marijuana continue to evolve, compliance with the DTEA and the AMMA is not rocket science. We have some clear guidelines to follow. If an employer has a policy, he or she should apply the policy both strictly and uniformly. Moreover, cardholders are now a “protected class” of employee with the ability to sue for damages resulting from discrimination based on their cardholder status. Lastly, employers should thoroughly and accurately document any signs of impairment to support a good faith belief of impairment prior to requiring a drug test.

Alejandro Pérez, Esq., founder and manager of the Law Firm of Alejandro Pérez, PLC, is a labor and employment attorney. Pérez regularly serves as a legal commentator for various media outlets and is the host of his forthcoming podcast “Work Matters,” focusing on employment law and human resources issues.

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