Employee use of marijuana — where are we headed?

   
Michael Gossie
 

The public, Arizona legislature, and courts are becoming more permissive toward marijuana use. As additional states adopt protections for employees who use medical marijuana and also legalize recreational marijuana, employers are left with more questions than answers about employee marijuana use. It may well be that one size does not fit all employers in approaching this issue.

While Arizona does not have recreational marijuana, some expect that it will by 2020.  This will likely add complexity as employers are faced with additional nuances and challenges as more employees using marijuana.

Arizona already has the Arizona Medical Marijuana Act (“The Act”), which provides protection for employees and employers.

Employees

Employees cannot be punished for being medical marijuana identification cardholders or for positive drug tests unless they used, possessed or were impaired by marijuana at the place of employment or during work hours.   

Employers

Stephanie Quincy is the chair of the Labor & Employment Practice Group in the Phoenix office of Quarles & Brady.

If employers have policies and drug testing programs consistent with state law, there is no employee cause of action for adverse employment action based on a good faith belief that an employee used, possessed, or was impaired by any drug while on the employer’s premises or during the hours of employment.

To take advantage of this protection, an employer must have a drug testing policy that complies with Arizona law. 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.

Some employers, such as those in health care, transportation, and construction, have many safety-sensitive positions that receive more deference to an employer’s rights, for obvious reasons. Safety-sensitive positions include any job that the employer designates as “safety-sensitive,” and/or any position which includes duties that the employer believes in good faith might affect the safety or health of the employee or others. For employers in these areas, a harder line may have to be drawn with employee marijuana use.

For other employers, a legally and practically safer approach may be to consider the other “safe harbor” of The Act (other than with “safety-sensitive” positions).  That approach calls for taking 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 obvious meanings, unfortunately, “impaired” does not when it comes to marijuana.  There are no “legal” levels for impairment of marijuana, unlike alcohol.

A wise employer must focus on impairment indicators (see sidebar) 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.  The law permits an employer to consider any of the following:

• Observed conduct, behavior or appearance;

• Information reported by a person believed 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 or courts;

• Results of a test for the use of alcohol or drugs; and

• Other information reasonably believed to be reliable or accurate.

A recent court decision highlights the importance of this approach.  On February 7, 2019, Whitmire v. Wal-Mart Stores Inc., 2019 WL 479842 (D. Ariz. Feb. 7, 2019), found that the employer violated the law when it terminated an employee for a positive drug test, but did not offer evidence of actual impairment during working hours.

In Whitmire, the plaintiff, a Wal-Mart customer service supervisor, injured her wrist at work. 

Upon reporting the injury, Wal-Mart asked Whitmire to submit to a drug test, which it required for all on-the-job injuries.

At the time the test was ordered, Wal-Mart did not know that Whitmire was a “Cardholder” (i.e. she had an Arizona-issued medical marijuana card) or that she had used medical marijuana the night before.  Whitmire disclosed these facts at her drug screen, which revealed the presence of marijuana metabolites in her urine. Wal-Mart fired Whitmire for failing the drug test, pursuant to its policy requiring termination when “any detectable amount” of illegal drugs is found in an employee’s body.

Whitmire filed suit in the District Court of Arizona and the court concluded that employees who are prescribed and use medical marijuana are permitted to sue their employers if the employer takes an adverse action in violation of the law.

The court found that an employer has a defense to a lawsuit when it has a good faith belief that the employee was impaired during working hours (or on the employer’s premises) and a drug test (or other evidence) corroborates that good faith belief. Wal-Mart did not support its termination decision with documented observation or anything else that might have supported a good faith belief.

In sum, employers should carefully consider how to handle drug use issues in the workplace as 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 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.

Marijuana impairment indicators

• Dilated (large) pupils

• Smell of marijuana on clothing, in room, or in car

• Bloodshot eyes

• Sleepy appearance

• Reduced motivation

• Anxiety

• Difficulty thinking

• Distorted sensory perceptions

• Dry mouth

• Feeling/appearing sluggish

• Grandiosity (acting in a pompous or boastful manner)

• Impaired judgment

• Impaired short-term memory

• Inappropriate laughter

• Increased heart rate

• Increased appetite, craving sweets

• Reduced coordination

• Sadness/depressed mood

• Social withdrawal and isolation

• Discolored fingers

Source: from The American Council for Drug Education