Arizona Prop 207: 14 Employer Questions Answered

Written by Joanna Morrow

Joanna Morrow, Principal and Founder of Employer Benefits & Advice, is an employer consultant and advocate who has worked in the employee benefits industry for over two decades. She works diligently to help employers overcome obstacles in their business by sharing her expertise in Human Resources, Benefits & Compensation, Process Mapping, Risk Management and ERISA/DOL/IRS compliance. She is a licensed life and health insurance professional in the State of Arizona and is an active member of the National Association of Health Underwriters (NAHU).

Arizona Prop 207: 14 Employer Questions Answered

On November 3, 2020, Arizona voters will have the opportunity to vote on Proposition 207, called the “Smart and Safe Arizona Act.” Prop 207, which would allow adults to use and possess marijuana, has a number of potential implications for employers should Prop 207 pass.

I recently sat down with local, reputable employment attorney, Julie Pace to discuss the implications for employers. Together we’ve compiled what we hope to be 13 helpful Q&A for Arizona employers. For a complete copy of the initiative, click here.

1. What is Proposition 207?

Proposition 207 is titled the “Smart and Safe Arizona Act.” According to its summary, the law “would allow limited marijuana possession, use, and cultivation by adults 21 or older” throughout the State of Arizona and create a 16% excise tax on marijuana sales. Proposed ARS § 36-2852.

2. As far as illegal drugs go, isn’t marijuana fairly harmless?

Marijuana is a psychotropic drug that can cause impairment, including altering a person’s senses, impairing their sense of time, impairing coordination and movement, causing difficulty in thinking and problem-solving, and other impairments that make it dangerous for the individual to do many every-day working tasks, such as operating a motor vehicle, operating machinery, etc.

3. Is marijuana more potent today than it was 30 years ago?

The definition of marijuana covered by Prop 207 includes all parts of the cannabis plant, its seeds, the resin extracted from the plant, and “every compound, manufacture, salt, derivative, mixture or preparation of the plant or its seeds or its resin.” Proposed ARS § 36-2850 (14)

This broad definition of marijuana allows the use of resins that can be 85%-99% THC, whereas a marijuana plant has THC levels averaging 15%.

4. What are all the ways marijuana can be consumed?

Beyond the improved potency allowed under Prop 207, the initiative does not address the numerous methods of consumption available to the public which can impact the effects of the drug depending on the method and frequency with which it’s consumed. Proposed ARS § 36-2851

In recent years, methods of consumption have expanded well beyond smoking the substance to include popular marijuana-infused edibles such as brownies, gummies, hard candy or suckers, chocolate, chocolate syrups, caramels, butters, oils, and flavorings that can be added to smoothies or other drinks or foods making it even more difficult for employers to detect on-the-job use.

Bottom line, improved potency and expanded methods of consumption ensures that an individual impaired by marijuana poses the same hazardous risk in the workplace as an individual impaired by alcohol or other drugs.

5. If Prop 207 becomes law, can employers still make employment offers conditional on passing a drug test for marijuana and its metabolites? Proposed ARS § 36-2851 (1) (2)

Yes. If Prop 207 passes, an employer can make an offer of employment conditional on passing a drug test, as long as the company complies with the Arizona Medical Marijuana act. Prop 207 expressly states that it does not restrict the rights of employers to:

  1. Maintain a drug-and-alcohol-free workplace; and
  2. To have policies that prohibit the use of marijuana by employees or prospective employees.

Note, however, that this law does not change the Medical Marijuana Act and an employee or applicant with a medical marijuana card is still entitled to the protection of the Medical Marijuana Act.

6. Can testing “positive” allow a Company to NOT hire an individual for “safety sensitive” work?

Yes. As referenced in Question 5, under Prop 207 employers can develop policies that prohibit the use of marijuana by employees or applicants, which will allow employers to refuse to hire an individual who tests positive for marijuana, regardless of whether they are hiring for a safety sensitive position, as long as the company complies with the Arizona Medical Marijuana Act. Proposed ARS § 36-2851 (6) (7)

7. Under Prop 207 can an employer fire someone for being high on the job?

Yes. As referenced in Question 5, under Prop 207 employers have the right to maintain a drug-free workplace and can develop policies that prohibit the use of marijuana. Therefore, employers can terminate employees who demonstrate behavior consistent with being “high” while on the job. Proposed ARS § 36-2851 (1) (2)

The key will be for employers to prove that a terminated employee was impaired while on the job or that he/she violated the Company’s drug- and alcohol-free workplace policy.

8. Due to the nature of my industry, my company complies with federal law with respect to drug and alcohol policy. Does Federal law trump State law?

Yes. If an employer can comply with both Federal and State law, then there is no conflict and the Federal law does not trump State law. Under the terms of Prop 207, however, there should not often be a conflict between Federal and State law because Prop 207 provides that it does not require a person to violate federal law and it does not require a person to implement or fail to implement a restriction on the possession, consumption, display, transfer, processing, manufacturing, or cultivation of marijuana if by doing so the person will lose a monetary or licensing-related benefit under Federal law.

It is important for Federal contractors who are required to comply with the Federal Drug Free Workplace Act to ensure that they continue to have and enforce a drug-free workplace policy and comply with the requirements of any federal contracts.

Companies with CDL drivers must comply with the Federal Motor Carrier Safety Act, including the drug testing requirements and restrictions relating to drivers using illegal drugs, which includes marijuana, as even if Prop 207 passes marijuana remains illegal under Federal law. Proposed ARS § 36-2851 (11)

9. How is “impairment” defined by the law?

It’s important for employers to understand the legal definition of impairment to ensure the Company’s drug and alcohol policy language complies with the Arizona Drug-Testing statute at A.R.S. § 23-493(7) definition. Under the Arizona Drug-Testing statute, “impairment” means:

“Impairment” means symptoms that a prospective employee or employee while working may be under the influence of drugs or alcohol that may decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the employee’s speech, walking, standing, physical dexterity, agility, coordination, actions, movement, demeanor, appearance, clothing, odor, irrational or unusual behavior, negligence or carelessness in operating equipment, machinery or production or manufacturing processes, disregard for the safety of the employee or others, involvement in an accident that results in serious damage to equipment, machinery or property, disruption of a production or manufacturing process, any injury to the employee or others or other symptoms causing a reasonable suspicion of the use of drugs or alcohol

10. How does an employer prove marijuana-impairment?

Under Prop 207, employers are not required to prove impairment before taking adverse action against an employee who tested positive for recreational marijuana (medical marijuana is still protected).

That said, employers who are able to prove impairment will have a better defense.

For reasonable suspicion testing, the employer should develop a “reasonable suspicion checklist” or similar document on which supervisors can document their observations of the employee’s conduct, behavior or appearance that support impairment. If the reasonable suspicion is verified by another employee as well, this also strengthens the employer’s case.

Other items that can support an employer’s belief that an employee is impaired could include:

  • Reported observations from coworkers or other third parties
  • Lawful video surveillance
  • Results of a drug test
  • Possession of drug or drug paraphernalia

11. Are there any guidelines for determining at what point an employee’s drug screen rating will provide an assumption of being “under the influence”?

No. Currently there are no guidelines for determining a threshold for when an employee’s drug screen provides an assumption of being “under the influence” or “impaired.”

12. Should it get passed, how will this new law affect my general liability and Workers’ Comp rates?

An employers’ workers’ compensation rates are based on factors that include the number and severity of the claims. Similarly, general liability insurance rates can be impacted by an increase in claims.

If the incidence and/or severity of a company’s claims increases as a direct result of impairment due to marijuana use among employees, then related insurance costs will also increase. It’s important to remember that just because an employee may have been impaired by marijuana at the time of a work-related accident does not mean his Workmen’s Compensation claim will be denied.

That said, some insurance may provide discounts if the company has and enforces a drug- and alcohol-free workplace policy so it’s important for employers to inquire accordingly with their insurers.

13. Does Prop 207 change or influence how the Company treats employees who have been prescribed medical marijuana?

No. Proposition 207 does not modify the Arizona Medical Marijuana Act (AMMA). Individuals with a medical marijuana card have the rights and protections of the AMMA. For example, Prop 207 allows adults to possess 1 ounce of marijuana or grow 6 plants, while the AMMA allows medical marijuana cardholders to possess 2.5 ounces or grow 12 plants. The job protections of the AMMA continue to apply to medical marijuana cardholders regardless of whether Prop 207 passes or not.

14. Should it pass, what are the most important steps I can take to protect the Company in the face of Prop 207?

Here are some of the most important steps a company can take to protect itself when it comes to Prop 207:

  • Implement a drug & alcohol free workplace program
  • Update current policies to support the above initiative by prohibiting the use of drugs, and ensuring that the policy specifically includes marijuana as a prohibited drug rather than just prohibiting the use of “illegal drugs.”
  • Ensure your drug & alcohol policy complies with the Arizona Drug Testing Statute at A.R.S. § 23-492 et seq so that the Company has the required protections, including the ability to deny unemployment to an individual who tests positive for marijuana. If your company’s drug policy fails to comply with Arizona law, then an employee who is terminated for violating the employer’s drug policy may still be awarded unemployment.
  • Develop a “reasonable suspicion checklist” which supervisors can use to reference and document their observations of an employee’s conduct, behavior or appearance that support impairment. Download a sample “Reasonable Suspicion Checklist” here
  • Ensure your drug policies comply with the Arizona Medical Marijuana Act.
  • Consult with the appropriate legal professional who specializes in this area to assist in policy development & compliance.

If questions such as these stimulate more questions for you, or you would like expert guidance, contact me at 602-903-4047 or  [email protected]