Proposition 207 (aka, the Smart and Safe Arizona Act), was approved in the recent election. Proposition 207 legalizes the possession of and use of recreational marijuana for persons who are at least 21 years or older under certain circumstances. Legal sales could start in March 2021. Many employers are wondering what effect this will have in the workplace. Below is a summary of the questions Employers Council is receiving in light of this new change in the law.
Q: Does Proposition 207 allow marijuana in the workplace?
A: No. Specifically, the law states that it: (i) does not restrict the rights of employers to maintain a drug and alcohol-free workplace or affect the ability of employers to have workplace policies restricting the use of marijuana by employees or prospective employees; and (ii) does not require an employer to allow or accommodate the use, consumption, possession, transfer, display, transportation, sale or cultivation of marijuana in a place of employment. Essentially, the passage of Proposition 207 maintains the status quo as to employers’ and employees’ rights with respect to marijuana. That is, an employer may discipline an employee who does not have a valid medical marijuana card if the employee tests positive for marijuana.
Q: Do I need to update my drug testing policy?
A: The Arizona Drug Testing of Employees Act protects employers from liability in various ways. There are several safe harbors under this statute (e.g., an employer may take an adverse employment action based on a positive drug test, claims from employees are restricted against an employer for actions taken in good faith based on the results of a positive drug test, and the employers’ good faith belief that an employee used, possessed, or was impaired by any drug while on the premises or during work hours).
Q: What about the Arizona Medical Marijuana Act (AMMA)?
A: The AMMA prohibits an employer from discriminating against a person based on either: (i) their status as a medical marijuana cardholder; or (ii) a cardholder’s positive drug test for marijuana components or metabolites, subject to various exceptions. Importantly, however, a cardholder may not be deemed under the influence of marijuana solely due to the presence of marijuana components or metabolites that appear to be in an insufficient concentration to cause impairment.
Q: Does it make sense to do away with our pre-employment drug testing screenings and the prohibition of off-duty use of marijuana for those employees who do not have a valid medical marijuana card?
A: This is a business decision. In states where the use of recreational marijuana has been legalized, the trend has been to abolish pre-employment testing for marijuana – in particular for employers who are not governed by federal regulations or do not have a high employee population engaged in safety-sensitive positions. Among other things, this decision eliminates the administrative burden of determining who is a valid cardholder and (who is not) and whether or not the marijuana use was for medical and/or recreational purposes. One can see the arguments brewing. That said, post-employment testing for reasonable suspicion that impairment may be present is encouraged. Some companies may also choose to continue random testing that is otherwise required under any federal or state law to detect other substances, or the level of metabolites in an employee’s system.
In sum, it is important for employers to examine and update, if necessary, their substance abuse policies. Specifically, employers should clarify that the use, possession of, or impairment by marijuana while working or on company property are strictly prohibited. Employers Council recognizes that the status of marijuana is constantly changing. We encourage our members to reach out to us for assistance with respect to this issue and will continue our efforts to update members of any changes regarding this fluid issue.