Prop 207 and Your Employees

*Disclaimer: This post relates specifically to Arizona State Law, and may differ from State to State. Anchor Solutions is not a Legal resource. Any action should be reviewed by a proper legal representative.*

Prop 207 has been big talk for the state of Arizona, and with good reason! The passing of this bill has created a myriad of policy changes, new restrictions, outsourced HR Services and new possibilities. But how does the bill effect your business? How do you handle the subject with your employees? Let’s talk about it!

A Little Background on Prop 207

Prop 207, also cited as the “Smart and Safe Arizona Act” is a 17-page amendment relating to the use and regulation of marijuana. Line one of Section two outlines the main purpose of the bill being, “In the Interest of the efficient use of law enforcement resources, enhancing the revenue for public purposes, and individual freedom, the responsible adult use of marijuana should be legal for persons twenty-one years of ager or older, subject to state regulation, taxation and local ordinance.”

The Act was approved by 60% of voters in the State of Arizona on November 3^rd, 2020; however recreational sale would not be available until just recently. Permits given to retailers for selling recreational marijuana was given in spaced out sections rather than an “all at once” fashion. This means that as recreational marijuana continues to become more readily available, some workplaces are scrambling to figure out how to handle the issue with their employees.

“How do I handle this with my Employees?”

The short answer, treat it like employers have been treating alcohol use for years. While you cannot stop your employees from drinking while off premises and off the clock, you still have the right to keep a drug free workplace. The same goes for Prop 207, outlined in Section Two part (c), “Employers retain their rights to maintain drug-and-alcohol-free places of employment.” The Employer also retains the right to discipline employees for marijuana use while on the clock or on the jobsite, *As long as they do not hold a valid Medical Marijuana Card.

“The Arizona Drug Testing of Employees Act protects employers from liability in various ways. There are several safe harbors under this statute (e.g., an employer may take an adverse employment action based on a positive drug test, claims from employees are restricted against an employer for actions taken in good faith based on the results of a positive drug test, and the employers’ good faith belief that an employee used, possessed, or was impaired by any drug while on the premises or during work hours).” (Employers Council, 2021)

“Should I still drug test my employees?”

The only real answer is, it depends. As the Employer’s Council wrote, “Among other things, this decision eliminates the administrative burden of determining who is a valid cardholder and (who is not) and whether or not the marijuana use was for medical and/or recreational purposes. One can see the arguments brewing.” (Employers Council, 2021). This poses another interesting argument, should employers keep a record of an employee’s Medical Marijuana card on file? This could save some heartache later down the road should an employee ever be disciplined even when protected by having a valid medical card.

We are still navigating this subject, and businesses continue to learn more about handling the situation in the workplace. As legalization continues to spread from state to state the pool of businesses dealing with the issue grows larger. Best thing you can do as a business owner is to be smart and tread carefully on the subject. Be sure to stay up to date and educated on the subject before taking any adverse action with your employees.

You can view the Entire Amendment here

Sources

Employers Council ( 2021) “Arizona “Pot Prop” Passes – So Now What?”

Retrieved From: https://blog.employerscouncil.org/2020/11/06/arizona-pot-prop-passes-so-now-what/

BallotPedia (2021) “Arizona Proposition 207, Marijuana Legalization Initiative (2020)”

https://ballotpedia.org/Arizona_Proposition_207,_Marijuana_Legalization_Initiative_(2020)

Arizona Secretary of State, “I-23-2020,” September 3, 2019

https://apps.arizona.vote/info/assets/18/0/BallotMeasures/I-23-2020.pdf