Proposition 207 changed the laws for marijuana possession and sales in Arizona, but it didn’t change much regarding how employers address drug use by workers, on or off the job.
The measure legalizing adult use of marijuana likely will result in more people using the drug once it is available over the counter, if it hasn’t already. But many workplaces are likely to maintain prohibitions on workers using the drug.
Phoenix lawyer Joshua Black and Emily Johnson, a lawyer for the Employers Council in Arizona, responded to some common questions about marijuana and the workplace with regard to the new law.
Can employers still require pre-employment drug tests?
Yes. And they can decline to hire people who test positive for marijuana unless that person has a medical marijuana card.
She said she now considers recreational marijuana similarly to alcohol use.
And while rare, employers can also decline to hire people who use alcohol or recreational marijuana if they choose.
“We have at-will employment, which basically means your relationship with your employer is like a dating relationship,” Black said. “It’s sort of take it or leave it. For the most part, the law doesn’t get involved.”
The exceptions to that are that employers can’t decline jobs to people because of race, sex, gender, disability, religion or other such factor, and the protections given to medical marijuana patients (more on that below).
Can employers fire or decline to hire people with medical marijuana cards?
Only if the job is “safety sensitive” or the company is a federal contractor, as marijuana remains illegal federally, Johnson said.
“One-hundred percent they can make adverse employment actions if they are federally regulated or a federal contractor or there are safety sensitive issues,” Johnson said.
Proposition 207 does not change the state’s Medical Marijuana Act, which passed in 2010. The Medical Marijuana Act prohibits employers from discriminating against people who have medical marijuana cards and use the drug.
For workers who do have medical marijuana cards, Black suggests disclosing the card when asked to take a drug test.
“At the point of being asked to take a drug test, employees should let the employer know they are a medical marijuana patient so they may test positive for THC,” Black said. “They can’t be impaired at work, and that’s where employers get in trouble if they don’t have real clear policies.”
One caveat. Anyone who is fired from a job for using medical marijuana, even off the job, has the burden of suing the employer. Some people do that, but not many people want to work at a place where they had to sue to be rehired, Black said. Often such cases are simply settled.
“They are few and far between,” Black said.
What is ‘safety sensitive’ and how is that determined?
A year after voters approved medical marijuana, and the workplace protections for card holders, state lawmakers approved a change that allows employers to refuse “safety-sensitive” jobs to medical marijuana patients.
Some lawyers question whether the change is legal, as any alteration to a voter-enacted law must further the purpose, and it is questionable whether this furthers the purpose of the Medical Marijuana Act.
“That was not part of Medical Marijuana Act. It was later passed by state Legislature, and it really abridges the rights given by the populace in the original Medical Marijuana Act,” Black said.
“That is something heavily disputed, and it’s likely to change in the future. But as of now there are those carve outs.”
For now, the law is on the books, and employers can use it to justify dismissing or not placing medical marijuana users in jobs the employer deems safety sensitive.
Employers mostly use the law to keep medical marijuana patients out of jobs that require commercial driver licenses or who, for example, use heavy machinery or medical work, he said.
A worker who wants to challenge the law would need to bring a lawsuit and see it through the courts.
“That’s still an issue that needs to be fleshed out,” Johnson said. “That takes trial and error, and time.”
Can employers prohibit on-the job marijuana use?
“The employer is not required to allow any employee to be under the influence of marijuana at work, regardless of whether they are a medical patient or recreational user,” Black said.” (Proposition 207) doesn’t mean employees can show up high to work.”
But to terminate someone for using the drug at work, employers need clear documentation of why they know the person was actually using at the workplace, Johnson said.
If the company does not prohibit employment for those who use marijuana off the job, then the employer can’t simply use a drug test to show the person was using cannabis on the job, as a person can test positive for the drug days or weeks after use.
Lawyers recommend employers document actual observations such as a person smoking marijuana, possessing the drug at work, or having glassy eyes or odd behavior, if they are terminating someone for on-the-job use.
“That boils down to documentation and observation,” she said. “It is important to have written documentation of a suspicion that somebody is under the influence. We always recommend more than one person who observes something.”
Should companies continue to screen job applicants for drug use?
Lawyers say this is subjective and depends on the industry and job duties. But they said that some employers may choose to forego drug screens so as not to limit whom they hire for jobs that are not safety sensitive and where home marijuana use may be acceptable.
In other states where recreational marijuana is legalized, some employers have done away with testing for some workers.
“If you are sitting at a desk performing customer service or what not, some employers have decided to completely do away with pre-employment drug testing all together for those positions,” Johnson said.
“That is a business decision,” she said. “I can’t make the call one way or another.”
Black said that is something to consider for employers who compete for talented workers.
“Someone who is medicating or now recreationally enjoying cannabis on the weekend should not be treated as a drug addict,” Black said. “That is clear now with our criminal policy in Arizona, and that’s got to follow suit in the workplace.”
“If a company has antiquated anti-drug policies, zero tolerance, that is something they can probably ease off of unless they are in a certain business where there is a special need for that,” he said.