Medical Marijuana in the Workplace

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Employment Attorney John Balitis from Fennemore Craig discusses a new law that gives employers new protections in dealing with medical marijuana in the workplace.

Ted Simons: Tonight on "Horizon," a new law gives employers new protections dealing with medical marijuana in the workplace. Also tonight, meet the new director of the Arizona Department of Economic Security and learn about his ideas for reforming the agency. Find out about the financial and operational challenges facing Arizona state parks, next on "Horizon." Good evening, and welcome to "Horizon," I'm Ted Simons. Maricopa County Sheriff Joe Arpaio today named a new second in command. Jerry Sheridan is the department's new chief deputy. He replaces David Hendershott who was fired last week after more than 30 years in the sheriff's office. The termination followed a report that found that Hendershott lied, mistreated employees and used his position for personal gain. Arpaio today blamed Hendershott alone for the misconduct in the sheriff's office, and vowed to never again be sheltered from his command staff by what he calls an overbearing chief deputy. And, records released in a lawsuit alleging racial profiling involving immigration sweeps, show that sheriff's deputies circulated e-mails repeating stereotypes about Mexicans. The records also show that the sheriff passed along letters he'd received calling for racial profiling, with some of those letters sent along to top officials in the department.

Ted Simons (cont'd): A new law gives some employers a shield from lawsuits filed by workers fired for being under the influence of medical marijuana or prescription drugs while on the job. Here to talk about the law is John Balitis, a lawyer for Fennemore Craig. This is Arizona's drug testing law, correct? How has this changed?

John Balitis: Well, the drug-testing law is a platform for employers to gain protection under certain circumstances. It was enacted in the mid 1990s to shield employers from unemployment claims if an employee was fired for failing a drug test. The platform now is being used to provide protection for employees, to protect them if they are fired for being under the influence of medical marijuana and other drugs.

Ted Simons: What about the law needed to be fixed, the hole that needed to be plugged here?

John Balitis: The law was I think initially thought of as a law that would be a best in class law. It took into account mistakes other states have made in passing similar laws. And it included a lot of new provisions that other laws don't have, like an anti-discrimination provision for employees. But it didn't address a lot of areas employers had about implementing the law, addressing situations in the workplace, how to analyze or gauge impairment. That's what 2541 does, it fills those gaps. It helps defines terms and gives protection.

Ted Simons: Let's define some terms. A good faith belief that the worker is impaired. Let's talk about what that means and what impaired means.

John Balitis: Well, good faith belief is a belief that an employer forms based on certain observations, And 2541 defines those. Surveillance, discussions with coworkers, watching certain types of behavior in the workplace. Any type of reliable source that an employer can glean information from can help the employer find a good faith belief. In terms of impairment, 2541 defines what the symptoms are that employers should look for in trying determine whether someone is impaired. And they're are fairly intuitive, Like, you know, problems walking, disregard for safety rules, odor, appearance, things like that. But at least it gives the employer a road map for what the law confirms they should be looking for.

Ted Simons: I'm a little confused here, because I know a good faith belief a positive drug test is included one of the factors there. But I thought the proposition said a positive drug test could not be used as a definition of impairment.

John Balitis: The proposition makes clear employers cannot take action against an applicant or employee simply by virtue of the fact, if they have a medical marijuana card, that they failed a drug test for marijuana. That provision remains intact in 203. It hasn't been changed by 2541. What 2541 does is essentially say, for those employers who want to be conscientious and implement drug-testing programs that meet a very high threshold, that satisfy certain criteria, those employers will gain protection. And if those employers look to, for example, a drug test as evidence of an employee being under the influence of marijuana, or using marijuana outside of the workplace, those employers will gain protection from the law. Employers who don't implement those drug-testing policies that meet the criteria, don't gain that protection from 2541.

Ted Simons: So basically, you can't just say, you failed a drug test, adios. It's got to be the structure of the entire scenario, correct?

John Balitis: Yeah. Well, in particular, I think one of the most important provisions in 2541 is the provision that deals with safety-sensitive jobs. Under the safety-sensitive job provision in 2541, an employer who forms a good faith belief that an employee may be using a drug that could cause impairment, gains the protection from 2541. And then cannot be sued, for example, for displacing, reassigning, even separating a worker in a safety-sensitive position. And one of the things the employer can look to, in determining if an employee is using a drug that could cause impairment, is whether or not they fail a drug test.

Ted Simons: So there is a different standard for some of these high risk jobs.

John Balitis: Yes. The safety-sensitive provision in 2541 allows employers to displace or move employees in those jobs, just by forming good faith beliefs that the employee may be using a drug that could impair. Other jobs that aren't safety sensitive still require the employer to actually see impairment in the workplace, based on the new definitions and criteria in 2541. So there are slightly different standards, depending on whether or not the employee is in a safety-sensitive job or not.

Ted Simons: Is that safety sensitive job, by definition, is that relatively clear?

John Balitis: It's spelled out. What the law says is that it includes certain types of jobs you would think are safety sensitive, operating machinery, driving vehicles and things of that nature. But it includes a catch-all provision which defines those jobs as any job that the employer designates as safety sensitive, or any job that fits into those criteria. So if an employer designates a job safety sensitive, by definition under the act the protection attaches

Ted Simons: That's got to be within reason, right?

John Balitis: Oh, absolutely.

Ted Simons: Last question: it sounds like there's a lot of common sense dealing with this in the sense of, if someone is impaired, whether it's medical marijuana or a prescription drug or cough medicine, for goodness sakes, it sounds like the employer now has a better chance of figuring out whether or not that person should be on the job.

John Balitis: The employer does. Because 2541 essentially says, you have more flexibility as an employer, provided you implement a policy and a substance abuse program that complies with the criteria in the statute. You gain protection, you gain flexibility to deal with workers in safety sensitive jobs and even other workers. If those policies aren't implemented, for employers who don't implement those policies, they will not gain the protections of 2541. It's very important for employers to retool policies or create them to take advantage of the law.

Ted Simons: Alright, very good, good to have you here, thanks for joining us.

John Balitis: Thank you, Ted.

John Balitis:Employment Lawyer;

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