FOLLOWING MARIJUANA LAW WILL CHALLENGE EMPLOYERS

PHOENIX - Arizona's new medical marijuana law may pose a dilemma for
employers trying to ensure a safe workplace while respecting the new
rights of those who will be able to legally inhale the drug.

The law spells out that workers who have a state-issued card 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 use marijuana 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 Phoenix labor lawyer 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 after 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," Phoenix attorney David Selden.

That, Selden said, presents a new hurdle for a company that wants to
fire a worker: 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."

Difficult to test

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," Johnsen
said, citing scientific data that measure things like agility.

Impairment lingers

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.

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 co-workers.

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.