State lawmakers are moving to give some relief to employers who fear the new medical marijuana laws are going to leave them powerless to fire or transfer workers who will soon be legally entitled to use the drug.
Legislation crafted by attorney David Selden would provide guidelines that companies could follow and not run afoul of the law. It also would provide some immunity from being sued by an unhappy employee.
That law, approved by voters in November, allows those with a doctor's recommendation to obtain up to 2 1/2 ounces of marijuana every two weeks. But the ballot measure also contains anti-discrimination provisions, including one that says an employer cannot make hiring, firing and disciplinary conditions based on a person's status as the holder of a medical marijuana card.
Potentially more significant for employers, that protection extends to someone who tests positive for drugs unless the company could prove the person used or possessed marijuana on the job or was "impaired" during work hours.
Only thing is, the law does not define exactly what constitutes impairment.
Selden, who specializes in labor law, said many companies maintain a zero-tolerance policy on drugs.
"In the medical marijuana statute, that may not be the appropriate policy because the person may have a prescription for that," he said. "Yet there are still many jobs that are safety-sensitive jobs where the employer, to comply with OSHA and other responsibilities would not want a person who is on marijuana, even if it's lawfully prescribed, to be operating things such as a forklift at Home Depot."
As already approved by the House on a 56-3 vote, HB 2541 would give protections to employers who take actions against workers in these safety-sensitive positions who, in good faith, they believe may be impaired.
But the language of that "good faith belief" exception created heartburn for some legislators and forced proponents to make some changes.
Rep. Daniel Patterson, D-Tucson, pointed out, for example, the legislation as introduced would permit companies to act based solely on "information reported by a person believed to be reliable." Selden defended that language.
"Employers today make countless decisions based on information from people believed to be reliable," he said, which could include a supervisor, a co-worker or even security personnel.
"When sexual harassment allegations are made, employers investigate those and make those decisions," Selden continued. Anyway, he said, these decisions always are subject to review.
Selden also said a worker could challenge any action which was based solely on the statements of someone who had reason to purposely make up a story.
More troubling, said Patterson, was language that exempted employers from being sued for taking action if they had a good faith belief that the worker "had consumed (drugs) in the recent past or intended to consume in the near future." That would even include an employee with a medical marijuana recommendation who intended to smoke the drug after going home from work.
"People that may need medical marijuana as medicine are going to be unfortunately caught up in a bad situation," Patterson said. "They could lose their jobs."
And Rep. Eddie Farnsworth, R-Gilbert, said he was uncomfortable with the whole idea of immunity.
"Businesses should have the ability to do what this bill does," he said. "But I think they act inappropriately they ought to be subject to the same kind of litigation everybody else is."
Those concerns made a difference.
The version eventually approved by the House removed any reference to consumption in the recent past or near future. Instead, action would be allowed - and immunity granted - only for current use of marijuana.
That provision allowing information from a reliable source was altered to add a requirement that there be a report from someone who actually witnessed the use or possession of drugs or drug paraphernalia at work. And anyone who acts with "gross negligence" is not entitled to the presumption of acting in good faith.
Rep. Kimberly Yee, R-Phoenix, who agreed to sponsor the legislation, said the bill, even as modified, offers valuable protection for companies.
"Employers want to comply with the law," she said of the voter-approved statute. "But they do not want to see their workplace put at risk due to an employee who is unable to safely perform his or her job."
The legislation still needs Senate approval.