Arizona - Considerations for Marijuana in the Workplace

Medical
Marijuana Law:

Recreational
Marijuana Law:

No Broad Laws
Legalizing Marijuana*:

*Marijuana is either totally illegal, or there may be laws decriminalizing possession, or use of marijuana, or, the state may have a CBD law legalizing THC at a level constituting marijuana-derived CBD.

Employer Concerns – Significant to Review

  • Regarding medical marijuana, (Arizona Revised Statute 36-2813) “Unless a 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 either: status as a cardholder,” or solely for testing positive unless they used, possessed, or were impaired at work.
  • Arizona’s Drug Testing of Employees Act (Ariz. Rev Stat 23-493 to 23-493-11) provides a definition of “impairment” which may be relevant when justifying impairment in conjunction with a positive marijuana drug test.
  • The Arizona Drug Testing of Employees Act (Ariz. Rev. Stat. § 23-493.06) provides for a safety-sensitive position carve out to the Arizona Medical Marijuana Act allowing an employer to restrict a safety-sensitive position from a medical marijuana patient. However, it is strongly suggested that the courts are likely to strike down the “safety-sensitive position” exception. Proceed with caution and with input from legal counsel.
  • Arizona Rev Stat. 23-493.06 states, “No cause of action is or may be established for any person against an employer who has established a policy and initiated a testing program in accordance with this article for any of the following,” list of good faith measures taken by the employer.
    • This list includes Ariz. Rev. Stat. 23-493.06 A. (7), “Actions to exclude an employee from performing a safety-sensitive position,” “…based on the employer’s good faith belief that the employee is engaged in the current use of any drug, whether legal, prescribed by a physician or otherwise if the drug could cause impairment…” “The belief regarding the effects of the drug may be based on information including results of a test for the use of alcohol or drugs, warning labels or other printed materials that accompany instructions for use of the drug, statements by the employee, information from a physician or pharmacist, information from reputable reference sources in print or on the internet or other information the employer in good faith believes to be reliable.”
  • With the passage of the Smart and Safe Arizona Act of 2020, recreational marijuana is legal but contains no employment protections. It appears to protect the rights of employers, (Section 36-2851(1)) “… to restrict the use of marijuana by employees or prospective employees.” Therefore, if an employee or applicant is not a medical marijuana card holder, it is believed the employer may take adverse action if a positive test is the result of recreational marijuana.

Testing

  • (Arizona Revised Statute 36-2814) “… a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.”
  • Arizona has a voluntary drug testing law and an unemployment law with details about drug testing. Although not required, these statutes provide some legal protections for employers complying with these voluntary laws including greater latitude to deny unemployment claims.

Hiring/Termination

  • See Significant above.

Discipline

  • Nothing in the law prohibits the employer from taking adverse action for an employee using, possessing or being under the influence of marijuana while at work.
  • Impairment is defined in the Arizona Drug Testing Employee Act (Ariz. Rev. Stat. 23-493.7) and is an important element in employment rights in Arizona. Impairment has further significance per a tentative ruling by the U.S. District Court in Arizona in Whitmire v. Wal-Mart Stores, Inc. No. CV-17-08108-PCT-JAT, 2019 WL 479842 (D. Ariz. Feb 7, 2019).

Use/Possession

  • Employers can restrict use, consumption, possession, transfer, display, transportation, sale, or cultivation of marijuana in a place of employment. (See Discipline above.)
  • Potency of infused edibles is limited to 10 ML/THC per serving, 100ML per package.
  • Smoking is permitted as a form of ingestion as long as it is not done in a public place or open space.
  • Driving under the influence is illegal and consumption in a vehicle is not allowed, neither by driver nor passenger

Other Impacting Laws

(e.g., drug testing, workers’ compensation, unemployment)
  • Arizona has a voluntary drug testing law and an unemployment law with details about drug testing. Although not required, these statutes provide some legal protections for employers complying with these voluntary laws including greater latitude to deny unemployment claims.
  • (Arizona HB 2159) This state has a drug testing requirement for bus drivers that may include marijuana.
  • If an applicant or employee refuses or tests positive on a drug test, an offer for employment may be withdrawn or be discharged for misconduct and ineligible for unemployment benefits. However, given the directives per Ariz. Rev. Stat. 36-2813, it would be prudent to have legal guidance before withdrawing an offer of employment or taking adverse action with an employee merely on the basis of a positive marijuana test result.
  • Misconduct includes, (Ariz. Rev. Stat. 23-619.01) “…Repeated intoxication, whether from the use of intoxicating liquor or the use of illegal drugs, on the employer’s premises or when reporting to work, frequent absences caused by intoxication or the aftereffects of intoxication or sleeping on the employer’s premises during scheduled work hours or inefficiency or inability to perform the employment, due to intoxication or the aftereffects of intoxication.”
  • Arizona H.B. 2346, specifies that nothing requires a provider of workers’ compensation benefits to reimburse a person for costs associated with the medical use of marijuana.
  • Apply the Checklist of Impacting Issues to Research provided by NDS for additional state laws and issues that can relate to and/or impact your operations regarding employee use of marijuana.

Sources

(e.g., Bill Number, Authority)
  • Arizona Revised Statutes Section 36-2801 to -2819 – Arizona Medical Marijuana Act
  • Proposition 207 (Arizona Smart and Safe Act) – Recreational marijuana
  • Drug Testing of Employees Act – Carve out for safety-sensitive positions
  • Whitmore v. Wal-Mart Stores, Inc., 359 F. Supp. 3rd 761 (AZ 2019) – Employment protections related
  • Ariz. Rev. Stat. 23-493 to 493.11 – Arizona Drug Testing of Employees Act
  • Ariz. Rev Stat 23.10-600-699 – Employment practices
  • Ariz. Rev. Stat. 23-619.01 – Misconduct
  • Ariz. Rev Stat 23-601 et al – Unemployment law
  • Arizona HB 2346 – Reimbursement of marijuana costs
  • Arizona HB 2159 – Drug testing of bus drivers
Disclaimer

This resource is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.

Caution

Where there are quotation marks, the language is directly from published law. This information is only a summary of some issues and it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g. workers compensation, unemployment law).

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