Recreational Marijuana Passes in Arizona – Should Employers Be Concerned?

Jennings, Strouss & Salmon, PLC

Arizona voters recently approved Proposition 207 – also known as the “Smart and Safe Arizona Act” – which largely decriminalizes marijuana possession and use for those who are at least 21 years old, establishes a framework for regulating the sale and possession of marijuana, and imposes excise taxes on recreational marijuana.    Although marijuana was previously authorized under Arizona law for medical purposes, recreational use was prohibited until the passage of this new law. Arizona now joins nine other states to authorize recreational marijuana use.

Starting after the election is certified, likely in early December, Arizonans can legally possess and consume up to 1 ounce of marijuana under state law with no more than 5 grams being marijuana concentrates (extracts), and can grow up to 6 marijuana plants at their residence (12 plants where two or more adults live).  Marijuana use will remain unlawful in public places. Dispensaries will likely begin recreational sales by April 2021, once the Arizona Department of Health Services adopts regulations consistent with the new law.

But does this mean that employers must give free rein to employee usage, including in the workplace?  The short answer is “no.” Employers can, and should, continue to protect their workplaces from the possession and use of marijuana while on duty or on the employer’s property. Additionally, even though Arizona has authorized recreational marijuana, it is still considered an unlawful controlled substance under federal law. Certain specialized industries also face additional regulatory requirements for drug and alcohol testing and prevention

Despite the impact of the new law, employers may continue to maintain a drug-free and alcohol-free workplace. Employers should remain cautious in deciding how broadly they draft and enforce their drug and alcohol policies and procedures, as the previously-existing Arizona Medical Marijuana Act continues to protect employees who are authorized to use medical marijuana. A February 2019 case decision reinforces the rights of employees to use medical marijuana in Arizona, and other pending legal challenges may further refine these rights. While employers may generally be entitled to prohibit marijuana use, medical marijuana usage presents another question.

Despite the fact that Proposition 207 does not dramatically alter an employer’s obligations under Arizona law, its practical effects may dramatically alter the perception of marijuana use and employer restrictions in the workplace. Employers should take note, and should revisit their policies and practices to ensure that they provide for both a practical approach and a safe workplace.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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