The passing of Prop 207 last November legalized the recreational use of marijuana for adults in the state of Arizona.  It now leaves employers with many questions on how the new law would impact their current policies and what they need to do to remain in compliance with new legal guidelines. The Greater Phoenix Chamber invited employment law expert Melanie Pate (Lewis Roca Rothgerber Christie) to help businesses better understand the new law.

  1. At the federal level, marijuana remains classified as a Schedule I substance under the Controlled Substances Act with no accepted medical use.
  2. What is now allowed and not allowed? Proposition 207, the “Smart and Safe Arizona Act”:
  • Allows limited marijuana possession, use, and cultivation by adults 21 and older
  • Eases criminal penalties for marijuana possession but bans smoking marijuana in public places
  • Imposes a 16% excise tax on marijuana sales to fund public programs and authorizes state and local regulation of marijuana licensees
  • Allows expungement of past marijuana offenses
  1. Employers may still take adverse employment actions based on a positive drug test or alcohol impairment test that indicates a violation of the employer’s drug and alcohol policy, or on the employee’s refusal to submit to a drug or alcohol test.
  • Adverse employment actions can include:
    1. A requirement that the employee enroll in a rehab program
    2. Suspension of the employee, with or without pay
    3. Termination of employment
    4. In the case of drug testing, refusal to hire an applicant

4. The new law does not restrict the rights of employers to maintain a drug and alcohol-free workplace or affect the ability of the employers to have workplace policies restricting the use of marijuana by employees or prospective employees.

5. Arizona’s Medical Marijuana Act:

  • Employers may not discriminate against a person in hiring, termination, or other terms or conditions of employment based on the person’s status as a cardholder.
  • Employers may not discriminate based on a cardholder’s positive drug test for marijuana unless the cardholder used, possessed, or was impaired by marijuana at work or during work hours.
  1. There are no “legal” levels for impairment of marijuana, unlike alcohol levels, which are stipulated in the DWI laws. Urinalysis, the type of drug test most commonly used by employers, is largely ineffective in determining whether a marijuana user is impaired at the time of the test.
  • Other indications of impairment in the workplace: dilated pupils, odor of marijuana, bloodshot eyes, sleepy appearance, reduced motivation, increased hunger, and difficulty thinking and concentrating.
  1. The drug testing law provides that an employer is protected from litigation based on actions to exclude an employee from performing a “safety-sensitive position”. Employers have latitude in designating positions as “safety-sensitive”. Examples include operation of motor vehicle or preparing or handling food or medicine.
  2. How could Prop. 207 affect immigration? Since marijuana is still illegal under federal law, there could still be consequences for noncitizen employees who use and possess marijuana in Arizona.  A noncitizen who admits to an immigration official that he used or possess marijuana could be found inadmissible, denied entry in the United States, or have his/her application for lawful status or naturalization denied.
  3. Update your company’s drug policies by:
  • Designating “safety-sensitive” positions
  • Stating circumstances under which testing may be required
  • Describing testing methods and collection procedures
  • Stating consequences of a refusal to participate in testing and any adverse personnel action that may be taken based on the testing procedure or results
  1. The Americans with Disabilities Act is clear that individuals currently engaging in the illegal use of drugs are not protected by the ADA. Even if permitted under state law and prescribed by a physician, marijuana use would still be considered illegal drug use under federal

 

Posted by Annelise Patterson