Employers and Drug-Testing Policies under Arizona Law

February 7, 2016 Comments Off on Employers and Drug-Testing Policies under Arizona Law

Under Arizona law, an employer may adopt and implement a policy for drug and alcohol testing of employees and job applicants. These employer policies may require drug and alcohol testing for any job-related purpose (for example, after a workplace accident) and may require random drug and alcohol testing if applied equally to all employees, officers, and supervisors.

To assist employers, this post answers some basic questions on employer drug-testing policies, the risks of liability from employee lawsuits, and the impact of Arizona’s medical marijuana law. (For purposes of this post, the term “drug testing” includes testing for alcohol consumption.)

What Must be Included in an Employer’s Drug and Alcohol Testing Policy under Arizona Law?

In Arizona, an employer’s drug-testing policy must include the following:

  • The employer’s policy on drug and alcohol use by employees.
  • Which employees and prospective employees are subject to testing.
  • The circumstances under which drug testing may be required.
  • The substances for which testing may be required.
  • The testing methods and collection procedures that the employer may use.
  • The consequences for refusing to participate in drug testing.
  • Any negative personnel action that the employer may take based on the testing procedure or results.
  • The right of an employee, on request, to obtain the written test results.
  • The right of an employee to explain, in a confidential setting, a positive test result.
  • The employer’s policy regarding the confidentiality of the test results.

When Can an Employer Require Drug Testing of Employees?

In general, an employer may require the collection of samples and drug or alcohol testing for any job-related purpose. Common examples include:

  • Investigation of an employee for possible impairment (on the job).
  • Investigation of a workplace accident (if the test is administered as soon as possible after the accident and given to employees who reasonably may have been involved).
  • Maintenance of safety for employees, customers, clients, and the general public.
  • Maintenance of productivity, quality products and services, and security of property or information.
  • Reasonable suspicion that an employee is using drugs and the use is negatively affecting performance or the work environment.

Are There Any Limitations on an Employer’s Legal Right to Adopt and Implement a Drug-Testing Policy?

Yes. The Arizona Supreme Court has ruled that an employer’s drug-testing policy cannot be justified solely on a generalized and unsubstantiated interest in preventing drug and alcohol use by its employees. In other words, an employer’s drug testing will be unconstitutional if the testing is both random and without suspicion, or if the testing is not relate to a legitimate job-related function.

Is an Employer Required to Keep an Employee’s Test Results Confidential?

Yes. In general, all communications and test results related to a drug or alcohol test must be kept confidential and may only be disclosed as permitted by law or in an employment-related grievance or lawsuit. But the employer must provide a copies to the employee on request and may provide test results and related information to a person hired to evaluate the test results or an employee’s explanation.

What Employment-Related Action Can an Employer Take under a Drug-Testing Policy?

An employer may take actions based on a positive drug test that can negatively affect employment or hiring. In the case of a job applicant, an employer may refuse to hire the applicant, but only as the result of a positive drug test (does not apply to positive alcohol tests).

In the case of either an employee or a job applicant, the employer may impose discipline or require participation in rehabilitation services after a positive drug test or refusal to consent to a drug test (although the possible discipline or rehabilitation options must be stated in the drug-testing policy). Common examples of discipline include suspension with or without pay and termination, and rehabilitation typically requires counseling.

As the Employer, What is the Risk of Liability from Employee Lawsuits Related to Drug Testing?

Under Arizona law, an employer can be sued based on the employer’s disciplinary action or rehabilitation requirements if the employee can show two things. First, the employee must show that the employer’s discipline or rehabilitation was imposed based on a false positive. Second, the employee must show that the employer knew or should have known of the false positive and recklessly, maliciously, or willfully disregarded the false positive. From the employer’s perspective, this means that an employer will not be liable merely because the employer imposed discipline or rehabilitation based on a false positive.

Does Arizona Law Provide Employers with Any Protection from Lawsuits?

Yes. Although not immune from all lawsuits, an employer is protected from certain lawsuits (including some by third parties) if the employer has implemented a drug-testing policy. A lawsuit cannot be maintained if (a) the employer followed its drug-testing policy, and (b) the employer:

  • Acted in good faith based on a positive drug or alcohol test.
  • Did not test for drugs or alcohol or for a specific drug or controlled substance.
  • Did not test for or detect a drug, medical condition, or mental or psychological disorder.
  • Terminated or suspended a drug-prevention or drug-testing program or policy.
  • Acted on a good-faith belief that an employee used or possessed any drug in the workplace or during work hours.
  • Acted on a good-faith belief that an employee was impaired while in the workplace or during work hours.
  • Prevented an employee from performing safety-sensitive work based on a good-faith belief that the employee was using any drug (including prescription drugs) if the drug could impair the employee’s performance.

Does Arizona’s Medical Marijuana Act Impact an Employer’s Drug-Testing Policy and Legal Rights?

Yes. In general, the Arizona Medical Marijuana Act (“AMMA”) places certain limits on the actions an employer can take against an employee who holds a valid medical marijuana card.

Under the AMMA, an employer cannot discriminate in hiring, firing, or any condition of employment (including drug testing) based on a person’s status as a holder of a valid medical marijuana card. The AMMA prohibits an employer from imposing discipline or rehabilitation if the employee has a valid medical marijuana card and tests positive for marijuana—unless the employee used, possessed, or was impaired by marijuana at work or during work hours.

In addition, an employer cannot require drug testing of an employee, and cannot search an employee or his or her property based solely on the employee’s status as a holder of a medical marijuana card or possession of an application for a medical marijuana card.

The impact of the AMMA on an employer’s actions under a drug-testing policy can vary depending on the facts of the situation. An employer should consult with an attorney if a specific situation arises involving employee drug testing and an employee with a medical marijuana card.

Are There Any Other Considerations that May Affect an Employer’s Drug-Testing Policy and Employment-Related Actions?

Yes. Some employers may have an obligation to report a positive drug test under laws that govern an employee’s professional or business license.

A teacher, for example, must be “certificated” (licensed) under state education law. The statutes also require school superintendents to report a reasonable suspicion of teacher drug use at any time and a reasonable suspicion of being under the influence of alcohol on school grounds or during a school event.

As another example, individuals who hold a commercial driver’s license, including school bus drivers, are subject to state and federal laws that require drug and alcohol testing. An employer that employs drivers and transportation-related workers must comply with those laws and may be obligated to report positive drug tests to state and federal licensing authorities.

Conclusion.

Overall, the laws related to the testing of employees for drug and alcohol use are complex and range from general laws applicable to all employers to detailed regulations that affect employers of individuals licensed under state or federal law. The answers given above provide only a general overview of the employee drug-testing laws in Arizona. If you are an employer, and you have specific questions or would like to adopt a drug-testing policy, the best approach is to contact an employment-law attorney.

James D. Griffith is an Associate Attorney with Mangum, Wall, Stoops & Warden, PLLC. He is licensed as an attorney in Arizona, the Navajo Nation, and the Hopi tribal courts.

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