Legalizing Marijuana: Employee Right vs Employer Risk

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).

Legalizing Marijuana: Employee Right vs Employer Risk

As November 8th approaches, Arizonans are preparing to vote on legalizing the recreational use of marijuana in our state. I think many people agree that the basic concept of decriminalizing marijuana use and possession makes sense on a number of fronts. Our current challenge however is ensuring that the language in Prop 205 accomplishes a balance in protecting the rights of all stakeholders including those that serve the best interests of our communities and business owners.

Having read the initiative in its entirety, I have also attended various industry information sessions, and discussed it with numerous legal experts. As someone who makes a living advocating for employers, I, like many, consider some of the language to be problematic particularly for business owners. Below I’ve answered in simple terms the most important questions in the minds of Arizona employers relevant to Proposition 205. I encourage everyone to read the initiative and ensure a thorough understanding of its implications prior to voting on November 8th.

What is Proposition 205?

Proposition 205 is an initiative that aims to create a statutory right for Arizonans aged 21 or older to use, possess, grow and produce marijuana. It prohibits penalizing any permitted use “notwithstanding any law to the contrary.” Proposed ARS § 36-2860.

If Prop 205 becomes law, can I still make employment offers conditional on passing a drug test for marijuana and its metabolites?

No. Once the use and possession of marijuana become a statutory right it erases the right of an employer to use it as grounds not to hire someone. Proposed ARS § 36-2852 (A)(7).

Under Prop 205 can I fire someone for being high on the job?

No, not really. Instead you would first have to prove that the employee was marijuana-impaired before you could take any type of disciplinary action, including termination of employment. This is probably one of the biggest issues I see with the statute. It places a very high burden of proof on the employer to prove impairment. Employers will only be able to take adverse action against a marijuana-using employee if the employee is (1) actually impaired on the job, and (2) “performing” a task that would (3) “constitute negligence or professional malpractice.” Proposed ARS § 36-2852 (B); Proposed ARS § 36-2852 (A)(7).

Unlike Colorado law that allows employers to “enact and enforce workplace policies prohibiting the consumption of marijuana and marijuana products by employees”, Prop 205 language only allows employers to “restrict” such use by employees. Legal analysts convey that the term “restrict” was a conscious decision on the part of law writers to protect the opportunity for employees to legally challenge employers whose actions could be viewed as an infringement of rights. Proposed ARS § 36-2852 (B).

Due to the nature of my industry, my company complies with federal law with respect to drug and alcohol policy. Doesn’t federal law trump state law?

Prop 205 does not include an “opt-out” provision for employers who must comply with federal drug-free workplace requirements. Under Prop 205 these employers will have to comply with conflicting federal and state laws pertaining to marijuana-use amongst employees. Proposed ARS § 36-2852.

How do you prove marijuana-impairment?

At an information session sponsored by the Arizona Corporate Commission back in August I learned that tetrahydrocannabinol or THC is the chemical responsible for most of marijuana’s psychological effects. THC levels are what determine the potency of a marijuana product. Much like our legal blood alcohol level of 0.08, other states that have legalized recreational marijuana have imposed legal limits on the amount of THC permitted in a driver’s system.

Prop 205 prohibits the state of Arizona from imposing a per se THC limit for marijuana-impaired drivers, making it extremely difficult to successfully prove impairment and prosecute in a court of law. Proposed A.R.S. § 36-2852 (A)(1); Proposed A.R.S. § 36-2860 (B).

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

As someone who received most of her drug education watching Scarface and Miami Vice reruns, I found it interesting to learn that Prop 205 redefines the definition of marijuana to include “all variations of the cannabis plant.” Proposed ARS § 36-2851 (7)(A).

The resin extracted from the marijuana plant is more commonly known as “Hashish” or “Hash”. Under current Arizona law Hash is not considered marijuana, but rather “cannabis” which is a significantly more potent narcotic and therefore warrants a more severe legal punishment. Possession is a Class 4 felony, production is a Class 2 felony.

Prop 205 redefines marijuana to include hashish, which is also legalized under Prop 205. While it does state limits such as only 6 plants per adult per household (not to exceed 12 plants) and that no more than 5 grams of marijuana per 21 year old person may be in the form of “concentrated” marijuana, terms like “concentrated” are not defined.

What is the business opportunity under Prop 205 for individuals looking to open their own marijuana retail dispensary?

A lot of business owners see significant revenue potential when they consider becoming a marijuana retailer. However, I found it interesting that medical marijuana retailers will basically have first dibs on opening retail outlets. It was explained that Prop 205 was written and is sponsored by the Washington D.C. based lobby the “Marijuana Policy Project” in conjunction with Arizona based medical marijuana dispensary owners. That said, in reading the initiative it was apparent throughout that great care has been taken to protect the business interests of this group over those looking to get in on the action as first-time retailers. As an example, until December 2017, only current medical marijuana dispensary owners may apply for retail licenses. See statute sections Proposed ARS § 36-2853(A)(C), ARS §36-2854(B)(1) and (3) and ARS §(36-2855(A)13) for additional examples.

What can I do to protect my business in the face of Prop 205?

The experts that presented at the Arizona Industrial Commission in August recommended employers start by removing the word “impairment” from workplace drug and alcohol policy and replace it with “under the influence”.

Read the initiative here. Vote. I recommend consulting with my professional expert Gina Kesler, Owner and President of local consulting firm Impact Employee Solutions that specializes in corporate drug and alcohol policy development and testing for Arizona employers.