5-minute read
The Smart and Safe Arizona Act legalized the use and possession of marijuana in the Grand Canyon State last year. But there’s still some confusion about the law’s impact on the workplace.
Here, then, is an FAQ that can help clear the air around marijuana use and employment law in Arizona.
Question: Can employers continue to administer drug and alcohol tests and prohibit marijuana use by employees?
Answer: Yes. There’s nothing in the SSAA that limits the right of employers to test employees or prospective employees for marijuana. Moreover, employers are in no way restricted from maintaining a drug-and-alcohol-free workplace or from prohibiting the use of marijuana by employees – while they’re at work.
That said, be sure you administer your drug-and-alcohol testing programs in accordance with Arizona’s drug-testing statute. Testing procedures, policy requirements, and processes that must be followed should an employer decide to fire an employee based on a positive drug test are all spelled out in the law.
Can an employer prohibit marijuana use at work?
Yes. Employees who are impaired or bring pot into the workplace or even your parking lot can be terminated.
Your employee handbook should clearly state that possession or use of, or impairment from marijuana in the workplace will not be tolerated. It’s an obvious point, but your policy also should spell out that employees should not report to work impaired.
Q: Can an employer fire or discipline a worker who tests positive for marijuana use?
Yes, though be careful. A positive test result won’t be enough. You’ll need to learn to recognize impairment – unusual speech patterns, odor of drugs, etc. – and to document any impairment as evidence in case the employee tries to sue you for wrongful termination.
Q: What if an applicant tests positive in a pre-employment drug test?
Cannabis can be detected in the body for up to 30 days or more after use. That’s why employers cannot refuse to hire an applicant automatically, especially if they happen to be a registered medical marijuana use cardholder. However, if marijuana use outside of work poses a safety risk, you may be able to refuse to hire the applicant. In addition, an employer who would lose a federal license by employing a marijuana user is not required to employ the individual. All of this can get complicated, so you might want to check with your legal team to ensure you’re not violating anyone’s rights.
Q: Should employers change their drug-testing policies to comply with the law?
Yes. Update your policies relating to drug use and drug testing to remove any language that says the employer will not hire or will terminate an employee who tests positive for marijuana. Add language to create an exception for registered cardholders. And, as stated above, your policy should state that you do not tolerate the possession, use of or impairment from marijuana at the workplace.
Also, if you haven’t already, update your anti-discrimination policy to prohibit discrimination against employees or applicants based on their status as a medical marijuana cardholder.
Q: What other restrictions apply to the use or possession of medical marijuana?
The law does not allow a cardholder to smoke marijuana in any public place (including public transportation) or to possess marijuana on a school bus, preschool or primary or secondary school or in any correctional facility. The law also does not change existing laws that prohibit the operation, navigation or being in actual physical control of any motor vehicle, aircraft or motorboat while under the influence of marijuana. Even someone with a medical marijuana card can be turned down for jobs requiring the operation of heavy equipment or machinery or that have been designated “safety sensitive.”
So, what’s the bottom line in all this?
While marijuana use is legal in Arizona, the law did little to change the rules around coming to work high.
It can be a really bad trip.
The Mahoney Group, based in Mesa, Ariz., is one of the largest independent insurance and employee benefits brokerages in the nation. Contact us at news@mahoneygroup.com or 480-730-4920.
This article is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel or an insurance professional for appropriate advice.