Arizona voters recently approved Proposition 207 which legalizes recreational marijuana starting in 2021. How is this new law impacting employers in Arizona?
Under the Influence at Work
Despite the passage of this law, employers may continue to maintain a drug-free and alcohol-free workplace. Even if an employee is a registered medical marijuana user, as with alcohol, employers never have to tolerate on-the-job use or intoxication. Employers should treat marijuana use similar to alcohol use – it is legal to use off duty, but employees cannot be under the influence or use it during work.
Drug Testing for Marijuana
If you employ workers subject to U.S. Department of Transportation (DOT) regulations such as truck drivers, airline employees, etc., there is no change to drug testing laws. Under these federal laws, employers must continue to include marijuana in their drug testing protocol.
For workers not subject to DOT regulations, employers can decide if they want to drug test employees or not. Because testing for marijuana does not indicate whether an individual used marijuana a few hours or several days ago, some employers have discontinued marijuana testing because they do not want to turn away qualified job applicants or penalize current employees for off-duty legal marijuana use.
- A 2010 Arizona law legalized medical marijuana for those with debilitating medical condition. Employers can prohibit those with medical marijuana cards from being under the influence of marijuana or using it during work.
- Medical marijuana card holders cannot be discriminated against simply because they have such a card. Employers are required to explore reasonable accommodations for medical marijuana users.
- Employers should not refuse to hire or fire a medical marijuana card holder solely based on a positive drug tests for marijuana.
- For guidance, contact your Human Resources department or an employment attorney.
Before You Fire or Discipline
To avoid a legal dispute when taking action with an employee who may under the influence at work:
- Obtain current observations by a supervisor for specific signs of intoxication; do not rely on rumors and assumptions. Document the specific signs of intoxication.
- For medical marijuana card holders who are non-DOT employees, do not rely solely on the results of a reasonable suspicious drug test when deciding to discipline or terminate an employee.
To clarify rules about marijuana use in light of this new law, employers should communicate their substance abuse policy to employees via an employee handbook and other means. Employers should review their substance abuse policy in their employee handbook to ensure it is up to date. Your policy should include:
- Prohibition of selling, possessing, selling or being under the influence of drugs and alcohol at work.
- Definition of drugs – 1) Any unlawful or controlled substance under federal law: and 2) Any substance including marijuana that affects the senses whether illegal or not, such as prescription drugs that may cause impairment.
- Employees should inform their supervisor if they are taking a prescription drug that may affect their performance.
- Details on drug/alcohol testing process, if any.
- Non-discrimination against applicants and employees who are medical marijuana card holders.
For expert guidance in reviewing/creating a substance abuse policy and reviewing your entire employee handbook, contact LJ Consulting.
Important Note for Employers Outside Arizona
If you employ workers in states besides Arizona, check the laws about marijuana use and drug testing for the states where you operate as laws may vary depending on the state.