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The medical marijuana age presents challenges regarding employee drug testing in Arizona

Posted by Craig Penrod | Mar 24, 2014 | 0 Comments

The use of medical marijuana in the state of Arizona and how that usage might impact a prospective employee's drug test is misunderstood with respect to common screening tools widely used in the hiring process.

In Peoria, Phoenix or other communities in Maricopa County, it is important that you consult Arizona lawyers experienced in DUI and related offenses like those associated with the Law Offices of Craig W. Penrod, P.C.

Third-party testing

In order too understand how employers are handling the presence of marijuana in screening tests, it is important to understand how third-party testing systems work. When a third-party company is involved in the drug screening process, if a positive result appears in the screen the third-party company will contact the employee candidate in order to confirm whether or not there is a medical reason for a positive drug result. If the prospective employee has a prescription a medical reason can be established for the substance appearing in the results of the screening. That positive result is removed from the drug-testing results sent on to the employer.

The same procedure is done should marijuana show up as a result in the prospective employee's system. The drug-testing company will verify that the prospective employee has been issued a legitimate medical marijuana card. If if it checks out, the results of the drug tests are not shared with the prospective employer. The challenge with marijuana, medical or otherwise, is that chemical residue remains in the system of a person long after the initial effects of the drug have worn off. Thus, a person is not necessarily high when they submit to drug screening.

It's clear that when you are dealing with issues surrounding medical marijuana that it is unlawful to possess it in the workplace and you are prohibited from using it while on the job. Yet, questions related to drug testing are not clear cut, especially depending upon the type of job involved in the scenario.

Schedule 1 narcotic

Arizona voters approved the Medical Marijuana Act (MMA) during the 2010 elections. Four years later, prescription medications may be allowable for employees while they are at work, but marijuana, even medical marijuana, remains a Schedule 1 illegal narcotic drug under federal law and does not exist under the same protocols as legal prescription medication. Doctors in the state of Arizona are not allowed to legally prescribe marijuana due to it's status as an illegal drug under federal rules. Doctors are only allowed to recommend it's use as part of a patient's care.

At this point, many employers are reluctant to know that their employees hold a medical marijuana card because of potential liability. Should an employer know that an employee has a disability or other condition that is required in order to obtain the card, they would, presumably, know at some point that an employee is using medical marijuana. Specific concern would be safety-sensitive jobs, such as mechanics, machinists and commercial vehicle operators.

Safety-sensitive positions

A weaknesses of the original MMA is the failure to provide employers with the tools necessary to establish policies for different types of jobs that would not be suitable for employees who rely on prescriptions or other substances. In April 2011, the Arizona Legislature approved legislation, which offered amendments to the MMA designed to clarify the role of employers in management of certain types of jobs. The legislation also defined the term, impairment, as a way to help companies establish performance expectations.

Under the law, safety-sensitive positions are defined as positions where the employee operates, repairs, maintains or monitors the performance or operation of a motor vehicle, equipment, machinery or power tools. Also the law is concerned with whether or not the employee works in the residential or commercial premises of a customer, supplier or vendor. Finally, the law establishes rules for persons who prepare or handle food or medicine.

Under the new law, safety-sensitive positions include all occupations regulated under Title 32 of the Arizona Revised Statutes. That includes over 40 categories of employees, including architects, engineers, cosmetologists, certified public accountants, funeral directors, nurses, private investigators and security guards.

And, the legislation allowed employers to designate other positions as falling under the category of safety-sensitive, as long as the employer acts with a good faith belief that the task “could affect the safety or health of the employee, or others." Employers are required to list the safety-sensitive qualification in the job description.

Defining impairment

Guidelines that define the term impairment include signs such as “an individual's speech; walking; standing; movement or physical dexterity; agility; coordination; actions; demeanor; appearance; clothing; odor; irrational or unusual behavior; negligence in operation of equipment or machinery; disregard of workplace safety; involvement in a workplace accident causing damage to equipment, machinery or property or causing injury to the employee or others; and any other symptom causing a reasonable suspicion about the use of drugs or alcohol.”

The amendments encourage employers to employ good faith efforts in the assessment of performance, but clarify the list of symptoms to be non-exhaustive and if behaviors are consistent with drug use, allow the employer to take action. In order to effectively manage their employees in today's era of medical marijuana.

  • Establish a clear Drug Free Workplace policy. Post the policy throughout the workplace, include it in your employee manual and within advertised job descriptions;
  • Update employee job descriptions with an eye on clarifying safety sensitive positions throughout the organization;
  • Take steps to make certain that performance standards are clear. Also, include the language provided under the legislation approved in 2011 by the legislature; and
  • Perhaps the most important step is that companies need to manage the performance of their employees as they would normally.

It is important that your legal situation should be handled by expert professionals with the experience possessed by the attorneys at the Law Offices of Craig W. Penrod, P.C. Our office offers free consultations for all DUI and criminal matters. Our Arizona DUI attorneys and Arizona criminal lawyers can provide you with the experience and knowledge needed for qualified representation. An experienced Arizona DUI lawyer is vital in DUI cases and our DUI attorneys set that standard. If you're in need of a criminal defense, our Arizona criminal attorneys are ready to assist you.

About the Author

Craig Penrod

Craig W. Penrod was born and raised in Arizona and has practiced criminal defense for over 30 years. Mr. Penrod is a member of the State Bar of Arizona, Maricopa County Bar Association, State of Nevada Bar Association, American Bar Association, American Trial Lawyers Association, Arizona Trial Lawyers Association, Nevada Trial Lawyers Association, Arizona Attorneys for Criminal Justice and the National Association of Criminal Defense Lawyers.

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