By: Joshua C. Black, Esq.
In November, Arizona joined four other states to legalize recreational marijuana use for adults 21 and older. The legalization trend has gained momentum in recent years and currently there are only six states in the U.S. that classify marijuana as illegal. The other 44 states have approved marijuana usage for either medicinal or recreational purposes.
With the approval of Proposition 207, many Arizonans are wondering how legalizing marijuana will impact the workplace for both employers and employees.
While marijuana use is still illegal under federal law, local laws are changing at a rapid pace across all 50 states. This can make workplace situations a bit confusing. Employers must be transparent in their expectations and ensure that their company’s cannabis use policies don't violate any state or local laws.
What to expect:
When Proposition 207 takes effect in January 2021, employers will need to update company handbooks, policies and procedures. Setting rules, regulations and repercussions is essential for a well-functioning workplace. In Arizona, these employment documents will need to differentiate between medical and recreational marijuana use and the varying legal protections and requirements for each.
Some businesses may have written and expressed policies that carve out guidelines for appropriate use of medical marijuana outside the workplace.
Employees should expect that most businesses will still have drug-free workplace policies, requiring employees to be free from impairment while at work.
Whether an employee has a medical marijuana card or not, the employee cannot be impaired while at work. This is no different than using alcohol in the workplace.
Business owners should develop a system for recognizing and memorializing alleged employee impairment as part of the company's discipline policies.
Can employers still require pre-employment drug tests?
Yes, pre-employment drug screening can still be used by businesses as part of the hiring protocol. Companies can also decline to hire job candidates who test positive for marijuana, unless that person has a medical marijuana card. Workers who have medical marijuana cards should disclose the cardholder status upfront to an employer if asked to take a drug test.
Can employers fire or decline to hire people with medical marijuana cards?
Although Arizona is an “at will” employment state, prospective employees cannot be denied a position simply for having a medical marijuana card, unless it’s for a federal contractor position (since marijuana is federally illegal) or for job considered "safety sensitive." Additionally, an Arizona employee cannot be fired solely for having a medical marijuana card. These rules do not apply to recreational cannabis users.
Legalizing marijuana for recreational or medicinal purposes adds new challenges in the workplace. Many workplaces across the state are likely to maintain prohibitions on workers using the drug. As businesses navigate these waters, clear communication and documentation about expectations is crucial for success.