Arizona’s recently passed Proposition 207 may have altered the laws regarding possession and sales of marijuana in the state, but it did little to alter the ways employers deal with marijuana use by their workers, whether on or off the clock.
The common public perception of the measure’s legalization of adult use of cannabis is that more people will start using the substance. If this hasn’t happened already, it may certainly once cannabis becomes more readily available over the counter.
Despite this, many employers are still likely to keep marijuana prohibitions in their workplaces in effect, including possession and use of the substance while on the premises or serving or acting as a representative for the company.
The truth is, not much for employers changes as a result of Proposition 207’s passage. The language of the proposition even states outright that nothing in the law restricts any employer’s right to maintain an alcohol-and-drug-free workplace or to place restrictions on drug or alcohol use by employees or prospective ones.
Under the new law, employers are still permitted to require new-hires to take and pass a marijuana screening pre-employment. They can further decline to hire someone who fails the test, unless that person has a valid medical marijuana card.
Just like an employer has a right to prohibit marijuana use by employees or refuse to hire an employee for using marijuana, however, an employer also has a right under the new law to hire an employee who uses marijuana recreationally, if the employer chooses to do so.
On Medical Marijuana
Proposition 207 makes no change to the Arizona Medical Marijuana Act of 2010. That includes the prohibition of employers from discriminating against legitimate, card-carrying Arizona medical marijuana patients in employment.
This means an employer is still generally prohibited from firing or declining to hire an individual with an Arizona medical marijuana card for their marijuana use. The exception to this is for jobs considered “safety sensitive” and, because marijuana is still illegal federally, even for medical use, companies that are federal contractors or otherwise federally regulated.
There is is some legal debate still underway about the legality of this so-called “safety sensitive” exception, and it is possible that this stipulation of the law may be amended or eliminated in future iterations. For now, however, employers may fire or refuse to hire an Arizona medical marijuana patient for safety sensitivity reasons. Currently, this mostly occurs in:
- Jobs requiring a commercial driver’s license
- Medical work
- Jobs operating heavy machinery
An employee does not have a right under the new law to use marijuana recreationally (or medically, for that matter) on the job. Nor is a prospective employee protected from being declined employment due to recreational marijuana use like he or she would be from discrimination due to gender, sex, race, religion or disability. There are, however, certain legal protections for employees and prospective employees who are legitimately authorized Arizona medical marijuana patients.
On Medical Marijuana
If you have a valid Arizona medical marijuana card, you are protected from discrimination in employment, including in circumstances of hiring and firing. If an employer asks you to take a drug test for or during employment, you should disclose at that time that you have a medical marijuana card and present it, if requested to do so.
Keep in mind, however, that even while you may be legally permitted to use medical marijuana while off the job, in most job circumstances, you cannot show up to work “high.” Nor can you do anything under the auspices of being a legitimate medical marijuana patient that violates the workplace’s health and safety policies and federal regulations or, again, that impairs your ability to perform the duties of your work.
If you are fired for using legally authorized medical marijuana on or off the job, it is up to you to sue your employer to challenge that action. Consider, however, that, if you want your job back after that, it may be uncomfortable to return to a workplace you’ve just brought to court. For this reason, many such disputes are simply settled out of court but don’t result in reemployment. Note that you must likewise sue your employer if you want to challenge his or her use of the so-called safety sensitivity exception against you.