Recreational marijuana is now legal in Arizona after voters approved Proposition 207, and that will pose some new challenges for employers, said Julie Pace, a Phoenix attorney who specializes in employment and cannabis law.
There also is confusion about what the implications are for both employers and employees, said Pace, an attorney with Gammage & Burnham, who spoke with Chamber Business News about what business owners need to know in moving forward.
Employers will need to be more diligent
The biggest challenge is that employers may no longer rely solely on a drug test to fire or discipline a worker, she said. In the past, a positive marijuana test was grounds for immediate action whether that meant termination, suspension or requiring an employee to undergo drug counseling.
Now that recreational pot use is legal, employers will need to be more vigilant about documenting impairment beyond a drug test because marijuana can be detected in the body for up to 30 days or more after using it, Pace said.
“Employers will need to pay attention to what they are doing to recognize impairment and to document or observe impairment including observations by individuals of the company who could be evidentiary witnesses if there’s a dispute about someone you fire or discipline for being impaired at work,” she said.
Arizona 16th state to pass recreational use
Under the new law, adults 21 and older may now possess, use and grow limited amounts of marijuana. Smoking in public, however, is prohibited.
Arizona joins 15 states that have approved recreational use and 34 that allow medical marijuana.
Pace laid out what employers need to know moving forward:
Employers can still maintain drug- and alcohol-free workplaces
The proposition still allows employers to maintain drug- and alcohol-free workplaces and prohibit pot use by employees.
That means employers can ban the use of pot on the job site, in the parking lot, during lunchtime and in any capacity that would cause them to be high or impaired during working hours.
The bottom line is that employees can still be fired or disciplined for being high at work, she said.
“Proposition 207 does not give any rights of employment to anyone at work. You can’t use marijuana at work. You can’t be imparied at work,” she said. “And Arizona is an at-will employment state, so you can be let go or terminated if you use it at work, possess it at work or have it in a vehicle or use it in the parking lot.”
Employers can still conduct pre-employment tests for marijuana
Employees can still pre-test applicants for marijuana and decline anyone who tests positive unless they have a medical marijuana card. However, if a cardholder is observed to be impaired at work, they can be let go.
Certain jobs prohibit any marijuana use
Job applicants with medical marijuana cards can still be turned down for jobs that have been designated “safety sensitive.” These are typically positions requiring driving or operating heavy equipment or machinery. This includes Commercial Drivers License (CDL) drivers.
Federal agencies and federal contractors can also deny employment to cardholders because marijuana possession, distribution and use is still illegal under federal law.
Arizona statute provides some liability protection
In Arizona, employers already receive some liability protections under the Arizona Drug Testing of Employees Act. Under the statute, an employer who fires someone for being impaired from drugs or alcohol cannot be sued by that individual and the company does not have to pay unemployment insurance.
To protect themselves further, employers should maintain a proper drug testing policy and drug testing program that complies with state statute.
They should use a reputable lab for testing that has a Medical Review Officer (MRO) to review and evaluate lab results, Pace said.
Employers also may want to consider using saliva testing that is proving to be more effective in detecting recent marjuana use, she said.
Employees should be educated about what Prop. 207 means
Because of confusion over the new law, Pace recommends employers educate their employees about what it means for them.
Employees should be made aware that certain CBD products are causing some job applicants to test positive for THC, the active chemical in marijuana.
Workers should also not assume that they can smoke a joint in the parking lot or during lunch hour without consequences, she said.
“Proposition 207 just means that they’re not going to be arrested and handcuffed by a police officer. It just means they’re going to be let go and lose their job and that’s going to hurt them in the employment arena.”