An Arizona Employer’s Comprehensive Guide to Marijuana Laws

Overview

The Arizona Medical Marijuana Act (AMMA) was passed in Arizona in 2011 and it allows patients with qualifying impairments to obtain Cannabis[1] for medicinal purposes. Then in 2020, the voters of Arizona passed recreational Cannabis into law through passing Proposition 207 (the “Smart and Safe Arizona Act” or “SSAA”). Although these laws make purchasing cannabis legal on the state level, we still hear quite a few questions about medical marijuana and recreational use of Cannabis and employment. One question we get asked quite often is, “Can employers prohibit employees from using Cannabis at work?” The answer to this question is “it depends”, and some major bases for this are 1) whether the employee’s use is medical or recreational; 2) if there are any requirements of the job that allow for a prohibition of any employee from using Cannabis; and 3) in what way the employer attempts to limit or fully stop Cannabis use.

Medical Marijuana

The AMMA allows patients who have an Arizona medical marijuana[2] card to possess up to 2.5 ounces of Cannabis and purchase that same amount of Cannabis from a state licensed dispensary every two weeks, or to grow up to twelve Cannabis plants for their own medical use with certain restrictions. Qualifying individuals under AMMA include individuals diagnosed with: Acquired Immune Deficiency Syndrome; Alzheimer’s disease; Amyotrophic Lateral Sclerosis; Cancer; Crohn’s disease; Glaucoma; Hepatitis C; Human Immunodeficiency Virus; and Chronic or debilitating diseases/medical conditions/the treatment of such diseases and conditions that cause: cachexia or wasting syndrome, severe and chronic pain, severe nausea, seizures, epilepsy, severe or persistent muscle spasms, or multiple sclerosis.

The AMMA also created rules to stop the misuse of medical marijuana. Specifically, it “does not authorize any person to engage in, and does not prevent the imposition of any civil, criminal or other penalties for engaging in, the following conduct”: (1) Undertaking any task under the influence of Cannabis that would constitute negligence or professional malpractice; (2) Possessing or engaging in the medical use of Cannabis: on a school bus; on the grounds of any preschool or primary or secondary school; or in any correctional facility; (3) Smoking Cannabis: on any form of public transportation; in any public place; and (4) Operating, navigating or being in actual physical control of any motor vehicle, aircraft or motorboat while under the influence of Cannabis (except that a registered qualifying patient shall not be determined to be under the influence of Cannabis solely because of the presence of metabolites or components of Cannabis that appear in insufficient concentration to cause impairment).

For determinations about medical marijuana and the workplace, both the restriction on undertaking any task under the influence of Cannabis that would constitute negligence or professional malpractice, and the restriction that stops people from operating, navigating or being in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of Cannabis are the most relevant to most workers and employers.

Recreational Marijuana

Under the Smart and Safe Arizona Act, recreational Cannabis use for adults over 18 years of age is now legal in Arizona. This means that individuals can use Cannabis and possess a legal amount of the substance without fear of Arizona authorities prosecuting them. This also allows for the expungement of previous convictions for Cannabis-related crimes that happened before the SSAA went into effect. See our legal blog on expungements for more information: Expungements and Set-Asides in Arizona.

This also means that employees are now allowed to use Cannabis while not at work. One issue that employees and employers alike now face is what happens if an employer wishes to maintain a drug and alcohol-free workplace? The answer is that employers still can state that they will allow no Cannabis use at work, during workhours, in work provided equipment and transportation vehicles and the like.

Changes after the passage of the SSAA

As stated above, Proposition 207 was passed to allow the adult use of recreational Cannabis in Arizona. This new proposition changed the laws for Cannabis possession and sales, but it did not change much for employers who wish to address drug use by their workers. Although Arizona law now allows recreational Cannabis use, the law does not stop employers from maintaining a drug and alcohol-free workplace. So now the law in Arizona basically treats Cannabis use for workers like it treats alcohol use. That means that employers can have a zero-tolerance policy for use of drugs while working, and can also state that employees cannot be intoxicated, or under the influence of Cannabis while on the job, even if that intoxication came from before they were working, just like with alcohol.

Arizona’s policies on Employers creating drug-free workplaces

 Arizona does not force employers to allow Cannabis use by workers in the workplace, or to allow workers who report to work under the influence of Cannabis. Therefore, employers in Arizona still have the right to enforce drug-free-workplace policies in order to best serve their workplaces.

 The Arizona Legislature also has created a set of policies for being able to test workers; to attempt to determine if a worker is impaired while on the job; and what to put into employee handbooks related to Cannabis use. The full text of A.R.S. 23-493 (“Arizona’s Medical Marijuana Law – Employer’s Rights and Responsibilities”) is here.

The basic provisions of this statute are that an employer must create and distribute a written policy to every worker “subject to testing or that has been made available to employees in the same manner as the employer informs its employees of other personnel practices, including inclusion in a personnel handbook or manual or posting in a place accessible to employees” and the employer must inform workers that they must submit to drug testing. This written policy must include: “1. A statement of the employer's policy respecting drug and alcohol use by workers. 2. A description of those workers or prospective workers who are subject to testing. 3. The circumstances under which testing may be required. 4. The substances as to which testing may be required. 5. A description of the testing methods and collection procedures to be used. 6. The consequences of a refusal to participate in the testing. 7. Any adverse personnel action that may be taken based on the testing procedure or results. 8. The right of a worker, on request, to obtain the written test results. 9. The right of a worker, on request, to explain in a confidential setting, a positive test result. 10. A statement of the employer's policy regarding the confidentiality of the test results.”

Employers may also test on a random basis and may test either on-site or off-site as long as “all compensated employees including officers, directors and supervisors shall be uniformly included in the testing policy.” Based on this, employers that follow the requirements of the statute are protected from legal action if the employers: (1) take actions against workers and can show that they acted in good faith, (2) are not testing workers for one specific drug, (3) can prove a good faith belief that a worker used or possessed Cannabis while at work, and (4) had a good faith belief that the worker was impaired while at work or on the premises.

How Arizona Compares to Other States

Arizona is one of only a few states that prohibits employers from discriminating against their workers for being medical marijuana patients. Article 36-2813 of the Arizona medical marijuana law goes even further, stating that workplaces cannot discriminate against a registered patient who fails a drug test for Cannabis unless that patient used or possessed Cannabis on the work premises or was impaired during work hours. This means that a worker cannot be fired for screening positive for Cannabis unless it can be shown that they were using it at work.

Cannabis is still classified as a Schedule 1 drug[3] and illegal in the United States under federal law. Consequently, any federal workers employed in the state of Arizona can still be terminated for testing positive for Cannabis use. And according to federal regulations, there are still several classes of workers that must submit to regular drug testing, including testing for Cannabis. For instance, the Department of Transportation issues strict guidelines for safety-sensitive workers, stating that it is still unacceptable for them to use Cannabis. Safety-sensitive workers include on-the-job drivers, train engineers, pilots, aircraft maintenance personnel, armed security guards, doctors, nurses, heavy equipment operators, mechanics, engineers, and chemists.

The Americans with Disabilities Act does not require employers to allow anyone with a disability to use Cannabis as an accommodation under the law, even if that person is a medical marijuana patient.

Other Arizona Caveats for Employers 

Although an employer should not discriminate against any worker for the use of Cannabis on or off the job, anyone who is fired from a job for using Cannabis, even while not at work, must proactively sue the employer to get relief. This is a relatively rare situation since the worker first needs to prove that the reason, they were fired was due to Cannabis use, and because most people do not wish to fight a decision like this just to go back to the employer who originally fired them. It should also be mentioned that Arizona is an “at-will” employment state, so all that an employer needs to show to be safe when firing someone is that they chose to terminate the worker for any reason that is not discriminatory in nature.

Frequently Asked Questions (FAQs)

Can an employer still drug test their employees for recreational marijuana use?

If employers wish to test for Cannabis use, issues do exist. Unlike alcohol testing, it is currently very hard (if not impossible) to test for when a person last used Cannabis. This means that if an employee uses Cannabis outside of work, they will still likely test positive for Cannabis use even when not using it at work. With these issues, the SSAA still does not offer protections for employees who use Cannabis, which leaves large holes in how enforcement of employment policies should be conducted.

Can an employer refuse to hire someone because they are a medical marijuana cardholder?

Not normally. The AMMA stops more than discrimination in hiring, it also clearly states that “unless failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon” the person being a medical marijuana cardholder. Once exception is if the employer receives federal funding. The exception for federal contractors happens because workers hired by employers who have these contracts are prohibited under the Drug Free Workplace Act from the unlawful use or possession of drugs (including Cannabis) in the workplace and there is no recognized allowance of any kind of Cannabis use federally. One other caveat is that employers could refuse to hire a person if the job required safety sensitive acts by that worker. Otherwise, in Arizona, the AMMA prohibits employers from discriminating against individuals who are authorized to use medical marijuana.

Can an employer refuse to hire someone because they use marijuana recreationally?

Since drug testing for Cannabis is an inexact science that cannot tell an employer the last time a person used Cannabis, it is generally seen that testing for Cannabis as a basis for hiring is something that employers should consider doing away with. Remember that is is now legal in Arizona to consume Cannabis, and therefore, someone who used Cannabis before applying for a job does not mean that they did anything wrong in a legal sense. If an employer wishes to stop Cannabis use at work, they still may do this, but testing issues still are present with this policy too. If an employer wishes to not hire someone only on the basis that they used Cannabis and tested positive for its use when applying, the employer could be subject to an employment claim by the would-be employee. Always remember that some jobs and industries are more able to be regulated so that any use of Cannabis by the employee can be a violation.

Can Arizona employers discipline workers who are medical marijuana patients after they test positive for Cannabis?

In most circumstances, no. Arizona law allows employers to test their worker for the use of drugs, but the AMMA stops employers from penalizing workers who are qualified medical marijuana patients because of a positive drug test for Cannabis, unless the worker actually used, possessed, or was impaired by Cannabis at the place of employment, or during their employment. Therefore, the AMMA stops a worker from any adverse employment actions based on a positive Cannabis test result alone. Due to this, before employers make decisions related to a worker’s Cannabis use employers should first determine if the decision is based on the following:

1. Did the worker use any form of Cannabis while at work, or during work hours?

     2. Was the worker in possession of Cannabis while they were at work, or during work hours?

     3. Was the worker impaired by Cannabis while at work (or is there reasonable suspicion that the worker was impaired while at work based on any noticeable signs)?

If the employer can answer yes to the above questions, then discipline against the worker under Arizona law is likely warranted.

Can Arizona employers discipline workers who use marijuana recreationally after they test positive for Cannabis?

Unless the job duties require no drug or alcohol use, the SSAA does not change much. If an employee uses Cannabis on his or her own time (not during work), they are legally free to do so and, in most cases, reprimands for use of Cannabis while not at work could result in employment claims by employees.

What are the possible issues if an employer lets a worker who tests positive for Cannabis keep working?

Even though the AMMA protects workers who use Cannabis for medical purposes (as does the SSAA in many cases when not using it during work), neither law requires employers to let Cannabis use harm their business. In fact, an employer that allows a worker to work after a positive Cannabis test, or who shows impairment, may face civil liability if any party is injured due to the worker’s inability to perform the job properly or safely.

[1] Cannabis is a genus of flowering plants in the family Cannabaceae and is the scientific name of what is commonly known as marijuana.

[2] Medical Marijuana is the term used in Arizona law for any Cannabis consumed, grown, and sold pursuant to the Arizona Medical Marijuana Act.

[3] Schedule I Drugs are defined as drugs with no currently accepted medical use and a high potential for abuse. Some examples of Schedule I drugs are: heroin; lysergic acid diethylamide (LSD); marijuana (Cannabis); 3,4-methylenedioxymethamphetamine (ecstasy); methaqualone; and peyote and is the class of drugs with the highest/most severe penalties associated with them.