Arizona Medical Marijuana Act ARS §36-2801 et seq. – Updates to “Zero Tolerance” Employment Policies and Manuals



Guy W. Bluff , Esq.  (23-Mar-2011)

A.   Arizona Medical Marijuana Act ARS §36-2801 et seq

This past November, Arizona voters approved, by 50.13%, Proposition 203, the Arizona Medical Marijuana Act, which legalizes marijuana for medicinal purposes. Arizona is one of only 15 states which currently have legislation permitting such medical use.

Significant to Arizona employers is the fact that the Act prohibits discrimination against a prospective or current employee who is a registered “cardholder” or as a result of a qualifying patient’s testing positive for marijuana during a drug screening.

Next month, the Arizona Department of Health Services is required to begin accepting applications for marijuana registry identification cards. As a result, Arizona employers should immediately consider revisions to their existing employment policies, procedures and employment manuals.

B.   Revision of Existing Policies Necessary

Previously, it was not uncommon, especially those employers working in the construction industry, to have “Zero Tolerance” policies in effect – both prohibiting the hiring of prospective employees as a result of positive pre-screen hiring, or as a result of testing positive for illegal or controlled substances post hire. In construction, where safety and a safe, drug free workplace is essential, such policies were routinely enforced by the Arizona Courts.

With passage of the Act, it is imperative to complete a review of existing procedures now, to avoid potential litigation or administrative complaints later. Arizona Employers should also consider training its managers, supervisors, and safety and HR personnel regarding the new requirements of the Act.

Each case an employer may face is unique and may require legal advice. This article is not intended as a substitute for specific legal advice your company may require. The sample language provided is intended as a general guide and should not be used without specific legal counsel who is fully advised of your company’s particular needs and circumstances. If you need further information regarding the Arizona Medical Marijuana Act, or would like to schedule an appointment to have your existing drug policies reviewed, please contact the author, Guy W. Bluff.

C.    Sample Policy Language

The company recognizes that with the passage of Arizona’s Medical Marijuana Act, (ARS §36-2801 et seq) some employees may seek or obtain a medical marijuana card from a licensed physician and the Arizona Department of Health Services for the treatment of certain illnesses for which the Act allows.

The use of marijuana, regardless of whether the employee has a legal prescription and a medical marijuana card, may still constitute grounds for discipline or termination by the Employer.

Possession, use of, or impairment from marijuana in the workplace will not be tolerated.

The legal use of marijuana will be treated in part similar to the use by employees of other prescribed medicines. In all cases, the employee will be prohibited from reporting or continuing work while under the influence of any prescribed or controlled substance – marijuana included, which may cause even the slightest degree of impairment while working on Employer’s premises or any job site during the hours of employment.

Further, the physical possession of marijuana, even if prescribed, is strictly prohibited while on the premises of Employer’s or any job site where Employer is contracted to perform work. Marijuana is still prohibited by federal law through the Controlled Substances Act (21 U.S.C. §811). Federal law does not recognize the difference between medical and recreational use of marijuana and possession while on the premises of Employer’s or any jobsite may subject Employer and the employee to criminal fines and or sanctions.

Possession of marijuana on your person, in your storage locker, or vehicle, while on the premises of Employer’s or any Employer jobsite is strictly prohibited under the Drug Free workplace regulations, and other regulations in place on federal property. An existing employee, who is also a registered medical marijuana cardholder, may not be terminated for testing positive for marijuana as the sole basis for termination.

Possession or use of marijuana in a company vehicle at any time is strictly prohibited and may result in immediate termination.

Operation of a company motor vehicle, equipment, machinery, or power tools, while under the influence of marijuana even to the slightest degree of impairment is strictly prohibited and may result in immediate termination.

Repairing, maintaining or monitoring the performance or operation of any equipment, machinery, or manufacturing process, the malfunction or disruption of which could result in injury or property damage while under the influence of marijuana even to the slightest degree of impairment is strictly prohibited and may result in immediate termination.

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Posted in Arizona, Employment