Posted 26 April 2011 - 12:32 PM
The Arizona Senate passed House Bill 2541 Tuesday afternoon, giving employers more protection in their drug testing policies when it comes to dealing with employees using medical marijuana.
If signed by Gov. Jan Brewer, this bill will go a long way in protecting employers and avoiding a lot of potential problems, said Joseph Clees, an employment attorney with the Phoenix law firm of Ogletree, Deakins, Nash, Smoak & Stewart PC.
For years, Arizona employers have not been required to comply with the state’s drug testing statute, designed to reduce employers’ liability if followed properly. Now that medical marijuana is legalized in Arizona, employers have been wondering how they are going to deal with medical marijuana users.
Proposition 203, which legalized medical marijuana, prohibits employers from using a positive drug test as a definition of impairment, said Dave Smith, Arizona vice president of member services for the Mountain States Employers Council.
Employers were scratching their heads, wondering how they would be able to show how an employee high on medical marijuana is impaired.
House Bill 2541 now defines impairment.
“This law defines impairment and then brings this safe harbor protection, shielding employers from legal liability if they are acting in good faith based upon that definition of impairment,” Smith said. “This bill helps define impairment at work with quite a bit of specificity.”
The bill doesn’t amend the medical marijuana law, he said, but amends the safe harbor protections in Arizona’s drug testing law.
“It’s high time that Arizona employers take advantage of the new protections offered by the drug testing statute,” Clees said.
The definition of “good faith” now includes the following:
* Observed conduct, behavior of appearance.
* Information reported by a person to be reliable, including a report by a person who witnessed the use or possession of drugs or drug paraphernalia at work.
* Written, electronic or verbal statements.
* Lawful video surveillance.
* Records of government agencies, law enforcement agencies or courts.
* Results of a test for the use of alcohol or drugs.
* Other information reasonably believed to be reliable or accurate.
The definition of impairment includes an employee’s speech, walking gait, physical dexterity, agility, coordination, actions, movements, demeanor, appearance, clothing, odor and irrational or unusual behavior, Clees said.
Impairment also can be defined when an employee is negligent or careless in operating equipment or machinery and shows a disregard for the safety of himself or other employees, he said. It also can be defined by an accident, disruption in the production or manufacturing process, and injuries to the employee or others.
Smith said this new law will be beneficial for employers.
“It helps employers define what impairment is,” he said. “Then if they’re acting in good faith, it shields them from legal liability.”
Read more: Arizona Senate passes drug testing bill related to medical marijuana | Phoenix Business Journal