It is now legal for marijuana dispensaries in Arizona to sell recreational marijuana to individuals 21 years old and older, so many employers are wondering how this will impact the workplace. However, it is important to note that under Arizona’s recreational marijuana law, called the “Smart and Safe Arizona Act,” employers are still permitted to maintain a drug and alcohol-free workplace, subject to the requirements under the Arizona Medical Marijuana Act. So what happens if one of your employees tests positive for marijuana and the employee is not a medical marijuana cardholder? Employers have a choice – they can decide whether to prohibit the lawful, off-duty use of recreational marijuana by employees who test positive but do not possess valid Arizona medical marijuana cards — or, in the alternative, they can treat recreational marijuana like alcohol, and simply prohibit impairment on the job.
Under Arizona’s Drug Testing of Employees Act (“DTEA”), employers are immune to certain liability related to drug and alcohol use in the workplace if their written drug and alcohol-free workplace policies and testing programs comply with the requirements set forth in the DTEA. To fully comply with these requirements — and thus to fully avail yourself of the employer protections under Arizona’s drug testing statutes — we recommend you update your drug and alcohol-free workplace policy and procedures to explain your position on recreational marijuana, including (1) whether the employer will test for marijuana, (2) under what circumstances it will test, and (3) whether it will terminate a non-medical marijuana cardholder’s employment for testing positive. And if you haven’t already designated safety-sensitive positions within your policy, we recommend doing that, too.
While Arizona employers are permitted to maintain drug and alcohol-free workplaces under Arizona’s Smart and Safe Arizona Act, remember that Arizona medical marijuana cardholders hold certain protections in the workplace.
If your drug and alcohol-free workplace policy and procedures have not been updated to address Arizona’s new law, please call us and we can help.