The public and courts are becoming more permissive toward marijuana use. As states adopt protections for employees who use medical marijuana and/or legalized marijuana, employers are left with more questions than answers. One size will not fit all employers. While Arizona hasn’t legalized recreational marijuana, some expect it will by year’s end. This will likely add another layer of complexity for employers. Updates will likely be made to the Arizona Medical Marijuana Act, further providing protections for employees and employers. To take advantage of this protection, however, an employer must have a drug-testing policy in place that complies with law.
– Stephanie Quincy, Quarles & Brady LLP
It is critical that this be done before an employee comes forward as a medical marijuana cardholder. In fact, employers should do this now if they have not done so already.
Perhaps a more legal and potentially safer approach may be to consider other “safe harbor” elements of The Act. For instance, an employer may take action against an employee (who has a medical marijuana card or with some employers, perhaps with any employee testing positive for marijuana) only when the employer has a good faith belief that the employee used, possessed or was impaired at work – and not merely based on a positive drug test. While “used” and “possessed” have different meanings, “impaired” does not when it comes to marijuana use. There are no “legal” levels for impairment of marijuana, unlike alcohol.
A wise employer must focus on impairment indicators and document them when an employee appears to be impaired. It is critical that supervisors be trained to observe, document and preserve any evidence of impairment.
Employers should carefully consider how to handle drug-use issues in the workplace should they arise. The more the employer can demonstrate that the employee’s job performance was impacted and that job performance and/or safety are the employer’s primary focus, the more defensible the action will be. In addition, if the employee is not in a “safety-sensitive position,” employers may want to consider treating marijuana use more like it does alcohol use.