Marijuana Impairment & Employee Termination: 9 Legal Tips for Employers

Marijuana Impairment & Employee Termination: 9 Legal Tips for Employers

In recent months an increasing number of employers have approached me with questions related to medical marijuana in the workplace. The common theme is employees testing positive for marijuana following a workplace accident and/or injury, yet employers remain fuzzy when it comes to their legal right to discipline or terminate.

I recently consulted on the matter with Julie Pace, one of Arizona’s leading employment attorneys. Julie has long advocated for Arizona employers in all facets of employment law, but workplace drug and alcohol policy is an area where she has been particularly active, both legally and politically.

In the 1990s Julie and her colleague David Selden wrote Arizona’s drug and alcohol statute which they shepherded through the Arizona Legislature to its ultimate adoption. They went on to write an amendment to that statute permitting Arizona companies to designate certain positions as “safety sensitive”. That amendment was ultimately passed by the Arizona Legislature, significantly expanding employer rights in this area.

Here Julie responds to some of the questions I’ve received from employers in recent months.

#1 – Is marijuana use legal in Arizona?

Under Federal law, marijuana is identified as a controlled substance. In Arizona, marijuana is considered legal only if the person has obtained a medical marijuana card and the marijuana is used for medicinal purposes. At this time, casual or recreational use of marijuana remains illegal in the State of Arizona.

#2 – Are there any exceptions whereby even medical marijuana is prohibited in the workplace?

Yes.

Federal Contract Workers

For those companies that do business as government contractors with the Federal Government, they must comply with Federal law, including the Controlled Substances Act (“CSA”). The CSA still identifies marijuana as a controlled substance and it is prohibited.

Arizona law recognized this special situation for Federal Government contractors and has an exemption in the law for companies with federal contracts so they do not have to comply with Arizona’s Medical Marijuana Act. This means that if employees working on a Federal Government contract test positive for marijuana, the medical marijuana card generally will not be considered, or be used to excuse them, from a positive test result. Thus, the employee could be terminated for a positive drug result including marijuana.

Mining Employees

Mining work has zero tolerance for any impairment from any source, whether it be medical marijuana or any other substance.

Department of Transportation (DOT)

DOT requirements in which drivers are operating on public roadways in buses, semi-trucks, etc. also prohibit marijuana use even if a person has a marijuana card.

#3 – Can I fire an employee for medical marijuana use?

The Arizona Medical Marijuana Act protects employees from being fired solely based on possession of a marijuana card. However, employees CAN be terminated under the following circumstances:

  • recreational use of marijuana
  • impairment at work
  • using or consuming marijuana on working hours or at a worksite

Observations of impairment at work and a positive drug test are still the best protection when separating employees based on use of marijuana or prescription drugs or alcohol.

However, before terminating an employee for marijuana use, it’s imperative the company have a well written drug and alcohol policy to support the grounds for termination.

#4 – If an employee with a medical marijuana card tests positive for marijuana following a workplace accident, can I fire that employee?

If an employee is in an accident or has a work-place injury, and the employee’s post-accident drug and alcohol test is positive including for medical marijuana, the Company generally may conclude that the person was impaired.

On that basis, the Company can implement consequences of discipline up to and including termination. Seek the advice of your attorney to help evaluate the circumstances.

Also, do not forget to have consent forms signed and completed by employees in advance so the company can obtain copies of drug and alcohol tests performed by hospital or other third parties.

#5 – Is it okay to state that an employee under the influence of medical marijuana cannot drive or operate company equipment?

A well-written Drug and Alcohol policy should expressly state that employees are prohibited from performing “safety-sensitive” positions, such as operating vehicles, company equipment or other tools while impaired.

#6 – What does it mean to designate a job as “safety sensitive”?

“Safety sensitive” positions could include but are not limited to activities such as:

  • driving
  • working at heights of 6 feet or greater such as on a roof
  • working on ladders or scaffolds
  • operating tools or equipment
  • working with chemicals or blow torches

We recommend companies utilize job descriptions, and identify whether the position is safety sensitive.

If an applicant tests positive for marijuana and is applying for a safety sensitive position, the employee potentially may be denied employment for a positive drug test.

#7 – What advice do you have for employers looking to develop or improve upon their drug and alcohol policy?

If a Company operates in multiple states, the Company should make sure that the Arizona operations have a detailed drug and alcohol policy that complies with Arizona law.

Some of the items a comprehensive policy should address:

  • who pays for drug & alcohol testing
  • types of testing that could occur such as pre-employment, post-accident, random, or reasonable suspicion
  • consequences of a positive test
  • second level review of a positive test by a medical review officer
  • consequences for a diluted test result or a refusal to take a test
  • type of laboratory and collection procedures being used

We also recommend employers include the following as a component of their overall drug and alcohol policy:

  • Drug & alcohol testing acknowledgement forms to be signed by employees and included with the employee handbook
  • Safety training documents regarding impairment in the workplace that address both marijuana and prescription drug use
  • “Reasonable Suspicion” training for supervisors so they can implement a “reasonable suspicion” checklist and testing protocol. This allows employers to terminate employees who’ve been identified as meeting two or more of the “reasonable suspicion” criteria AND who test positive for marijuana or other drugs.

Prescription drug use by employees remains the number one impairment issue in the workplace today.

#8 – What are some of the less obvious benefits of a comprehensive drug & alcohol policy?

Arizona has a very good drug and alcohol statute adopted in the 1990s that offers certain protections to companies with a written drug and alcohol policy.

For example, generally, lawsuits and unemployment claims will be dismissed where an employee is challenging termination based on a positive drug or alcohol test. Also, a reduction in worker’s compensation premiums may also be awarded to companies with a comprehensive drug and alcohol policy.

#9 – What’s the biggest mistake companies make when it comes to their drug and alcohol policy?

Not having one! Just as dangerous is using a generic, boiler maker template to develop the policy under the misconception that using a legal professional is cost-prohibitive. Not the case. Seek legal advice and assistance in establishing and implementing your policy. Surprisingly the cost is very reasonable and far outweighs the risks of not having one.

For a flat fee of $500 Julie’s firm will draft policies, acknowledgment forms, training talks, and training documents for supervisors for any specific business or industry.

For more information about policy development, contact Julie Pace at: jpace@cavanaghlaw.com or 602-322-4046.

Author
Joanna Morrow

Joanna Morrow is an employer consultant and advocate who has worked in the employee benefits industry for over two decades. She works diligently to help employers overcome obstacles in their business by sharing her expertise in Human Resources, Benefits & Compensation, Process Mapping, Risk Management and ERISA/DOL/IRS compliance. She is a licensed life and health insurance professional in the State of Arizona and is an active member of the National Association of Health Underwriters (NAHU). Joanna is a senior partner at Arizona Benefit Consultants in Phoenix.

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