FAQ: Marijuana Employment Laws & Marijuana in the Workplace

Now that voters have passed Prop 207 and recreational marijuana is legal in Arizona, it has led to a bit of confusion when it comes to marijuana employment laws and implications, including drug use policies, drug testing, medical marijuana cardholders, and general employee education. Below, we provided some common questions and answers in the hopes of clearing up some uncertainty:

Can I Smoke Marijuana in the Workplace Now That It is Legal?

No. An employer is not required to permit marijuana in the workplace, regardless of whether they are a recreational user or medical patient. The proposition itself states that it does not:

  1. “Restrict the right of employers to maintain a drug- and alcohol-free workplace or affect the ability of employers to have workplace policies that restrict the use of marijuana by employees or prospects.”
  2. “Require an employer to allow or accommodate the use, consumption, possession, transfer, display, transportation, sale or cultivation of marijuana in the workplace.”
  3. “Restrict the rights of employers...to prohibit or regulate conduct otherwise allowed by this chapter when such conduct occurs on or in their properties.”

Simply put, employers retain the right to implement policies within the workplace that restrict the use of marijuana.

Can Employers Fire or Decline to Hire Anyone with Medical Marijuana Cards?

Passing Prop 207 does not eliminate Arizona’s existing medical marijuana program. Instead, the Smart and Safe Act adds a separate chapter.  

Although rare, some jobs may prohibit any marijuana in the workplace altogether, and job applicants with medical marijuana cards can still be denied employment for jobs that are designated “safety-sensitive.” These positions typically require driving or operating heavy machinery or equipment, including Commercial Drivers License (CDL) drivers. 

Federal agencies and contractors can also deny employment to medical cardholders because cannabis possession, distribution, and use are still federally illegal.

If Marijuana is Legal, Can Employers Test For It?

Yes. Employers can still conduct pre-employment drug tests for marijuana and decline to hire anyone who tests positive unless that person presents a medical marijuana card. However, if even a cardholder is observed to be impaired in the workplace, they can be terminated.

So, What Can I Do Under Prop 207?

Because the new law creates so much confusion, each employer needs to educate their team about what it means for them and their specific workplace.

Employees should be aware that certain CBD products have been known to cause job applicants to test positive for THC.

Workers should not also assume that they can smoke in the parking lot or during lunch hour without consequences. 

The passage of Prop 207 just means that employees are no longer going to be arrested and handcuffed by a police officer, but it does not exempt them from being let go.

In short, Prop 207 doesn't change Arizona's Medical Marijuana Act, which was passed in 2010. This act prohibits employers from discriminating against people who have medical marijuana cards and use the drug. However,  in most cases, recreational use will be considered similarly to alcohol use — employers reserve the right to terminate employment to anyone who is observed using marijuana in the workplace, on company time, or company property, and in any case that the use of marijuana directly impairs their ability to carry out the duties of their job.

While Prop 207 does not appear to change much for employers in terms of policies on possession, usage, or impairment, as more time passes and the use of recreational marijuana becomes more normalized, it’s likely that employers will opt to confront these issues again. 

In the meantime, it’s imperative that business leaders and employers mitigate any potential risk and protect their businesses by educating their employees, evaluating their policies and guidelines on testing and enforcement, and counsel their teams on best practices to avoid any marijuana-related discrimination claims.