Arizona's new medical marijuana law is going to create new problems for employers trying to promote a safe workplace while respecting the new rights of those who will be able to legally inhale the drug.
The law spells out that a worker who has one of those state-issued cards allowing them to possess and use marijuana cannot be fired or otherwise disciplined solely for testing positive on a drug test.
Nothing in Proposition 203 permits an employee to imbibe while on the job. And the law says that immunity from being discharged does not apply to a worker who is "impaired.''
But two attorneys who specialize in labor law disagree on how hard it will be to prove that.
"The first thing I'm going to tell any employer to do is take a close look at their existing written policies regarding drug and alcohol use in the workplace,'' said attorney Don Johnsen. "We want to make sure the policies reflect the changes in law so the employer is not viewed as going farther than what the law allows.''
That goes directly to the question of policy of testing workers, whether at random or following an accident.
"If the positive drug test is of a person who's a cardholder, the law has a presumption that the marijuana use was for medical purposes, not recreational,'' said attorney David Selden.
That, then, presents a new hurdle for a company which wants to fire a worker. Selden said that will require proving impairment.
"One of the most common ways is through symptoms,'' he said, "a delayed reaction, a lack of perception, loss of energy, bloodshot eyes, dilated pupils -- those kinds of things that people remember from college,'' Selden said.
"It's turning employers into the equivalent of a field sobriety test,'' he continued. "There is a not a scientific measurement of impairment the way there is for alcohol.''
With alcohol, for example, there are specific measurements: A blood-alcohol content of 0.08 is considered presumption of intoxication under state driving laws.
Not only is there is no numerical standard for marijuana, Selden said the test used doesn't even measure current impairment. He said a worker who has used marijuana weeks earlier still can test positive.
Johnsen, however, said he believes employers can take a much more hard-line approach to rid their companies of workers who test positive, including those with the medical marijuana cards. He said that, as far as he's concerned, any worker with any amount of marijuana in his or her system could be considered "impaired.''
"We know from physical testing that people are actually impaired by their use of marijuana for days after they actually use it,'' he said. Johnsen said there is scientific data which measures things like agility.
One 1985 study at Stanford University allowed airline pilots to smoke low-grade marijuana and then put them into flight simulators. That resulted in numerous "crashes.''
But the real key, said Johnsen, is that they got back in the simulator a day later and still crashed the planes.
"And it was pretty clear the reason they were crashing was because they were impaired, they were influenced by the marijuana that was still in their system,'' he said.
Johnsen said a company that works with a pharmacologist or other scientific expert on the effects of marijuana will be able to justify firing a worker based on impairment.
Selden, however, said he would not advise companies to fire a card-carrying worker based solely on a positive test.
"Employers are going to have to train people who are supervisors in safety-sensitive jobs to tell what the symptoms are and to observe their employees for signs,'' he said. That means going through procedures to ensure a worker is alert and oriented.
Selden said the need for that goes beyond identifying and firing an impaired worker without being sued by that employee. He said a company faces possible lawsuits if it doesn't find that worker.
"Under Occupational Safety and Health Administration (rules) there's a duty to provide a workplace free of recognized hazards that could cause serious injury,'' Selden said.
That anti-impairment requirement of Proposition 203 applies across the board, and not just to those who are running equipment or doing other potentially dangerous tasks.
"But I don't think employers are going to be going around and looking into everybody's eyeballs and checking them out in the morning,'' he said.
Selden said there's one other danger for employers in the new law: the possibility that someone who has a medical marijuana card -- and the company knows about it -- claiming they are being subject to closer monitoring than coworkers.
There aren't a lot of legal precedents for Arizona employers to follow in figuring out how to deal with the law. That's because the medical marijuana laws previously enacted in most states do not have the workplace immunity provision.
It was problems that developed for workers elsewhere which caused the sponsors of the Arizona measure to add the language.
One of the most noted cases involves a former Wal-Mart worker in Michigan who obtained a medical marijuana card under that state's laws to deal with the pain from sinus cancer and a brain tumor.
Joseph Casias said it never was an issue until he sprained his knee at work and, pursuant to company policy, had to take a drug test. He said company officials fired him for the positive test, saying nothing in the Michigan law requires the firm to honor the marijuana cards.
Despite the lack of an anti-discrimination provision, Casias filed suit against Wal-Mart earlier this month in federal court saying he was wrongfully terminated.