Tuesday, November 10, 2020
For residents of Arizona, Montana, New Jersey, and South Dakota, 11/three might grow to be one other 4/20, as on Election Day, voters in these states permitted initiatives to becoming a member of 11 different US states that beforehand decriminalized leisure grownup use of marijuana. Employers in these states nonetheless is probably not as enthusiastic, since approval of leisure marijuana use undoubtedly will affect how they cope with candidates and workers on the subject of marijuana-related points, in addition to their general strategy to substance abuse and drug testing insurance policies. It’s subsequently vital for employers to know the implications these developments might have on how they strategy the usage of marijuana by their workforce. This submit primarily focuses on the evolution of marijuana legal guidelines in Arizona, the place medical marijuana use has been authorized for practically a decade, and examines what the latest legalization of grownup leisure marijuana use means for employers within the state, which can additionally serve for instance of how different states might tackle this concern since it seems that attitudes in direction of marijuana legalization are considerably shifting, signaling that extra states might approve of comparable measures sooner or later.
Following a poll proposition permitted by voters in 2010, the Arizona legislature handed Arizona Medical Marijuana Act (“AMMA”). Completely different from most states’ medical marijuana statutes, the AMMA goes past allowing medical marijuana to additionally set out specific employment protections that prohibit employers from discriminating towards workers and candidates who maintain a legitimate medical marijuana use card. Particularly, below the AMMA, Arizona employers can’t refuse to rent an applicant nor hearth or in any other case punish an worker based mostly on the person’s standing as a registered medical marijuana cardholder. Protections below the AMMA will not be with out their limits, nonetheless, and employers will not be required to accommodate medical marijuana use, possession, or impairment on their premises or throughout work hours. Certainly, a latest resolution from an Arizona federal courtroom confirmed that below the AMMA, “an employer can’t be sued for firing a registered qualifying affected person based mostly on the employer’s good-faith perception that the worker was impaired by marijuana at work, the place that perception relies on a drug take a look at sufficiently establishing the presence of ‘metabolites or parts of marijuana’ enough to trigger impairment.”
Though medical marijuana has been authorized in Arizona for a few years, efforts to legalize leisure marijuana use failed in 2016, when a poll proposition acquired solely 48.7% of the vote in favor. Nonetheless, in 2020, voters in Arizona enthusiastically voted “sure” on Prop 207 – with practically 60% of votes in favor – legalizing leisure marijuana possession and use by adults. Particularly, Prop 207, generally known as the “Sensible and Protected Arizona Act,” permits adults age 21 years previous or older to make use of, possess, or switch as much as one ounce of marijuana and domesticate for private use no more than six marijuana vegetation at a major residence. As well as, the Act imposes a 16% excise tax on marijuana gross sales to fund neighborhood schools, infrastructure, public security, and public well being applications. Importantly, the Act doesn’t enable any particular person to smoke marijuana in a public place or devour marijuana or marijuana merchandise whereas driving, working, or using as a passenger in a motorized vehicle, boat, or different car used for transportation. Additional, the Act doesn’t supersede or remove any current rights or privileges of any particular person, which incorporates qualifying sufferers below the AMMA.
Just like the AMMA, the Sensible and Protected Arizona Act goes past simply permitting grownup leisure hashish use. It additionally amends prison classifications and penalties for hashish possession and use, and it even permits courts to vacate and expunge sure marijuana arrests, expenses, adjudications, convictions, or sentences in sure circumstances beginning in mid-2021. This uncommon provision is more likely to have implications for Arizona employers who carry out pre-employment background checks, and accordingly these employers ought to make sure that their prison background checks are based mostly on essentially the most up-to-date, correct information.
Along with these provisions, and in addition just like the AMMA, sure provisions of the Sensible and Protected Arizona Act relate on to employers. Preliminarily, you will need to acknowledge that the legalization of leisure marijuana use in Arizona doesn’t robotically require employers to tolerate marijuana use by their workers. Particularly, the Act doesn’t:
limit the rights of employers to take care of a drug-and-alcohol free office or have an effect on the power of employers to have office insurance policies proscribing the usage of marijuana by workers or potential workers;
require an employer to permit or accommodate the use, consumption, possession, switch, show, transportation, sale or cultivation of marijuana in a spot of employment; or
limit the rights of employers to ban or regulate conduct that happens on or of their properties.
Total, the Sensible and Protected Arizona Act, and different state legal guidelines prefer it, protect employers’ skill to take care of and implement zero-tolerance drug-free office insurance policies in the event that they so select. Nonetheless, as extra jurisdictions legalize leisure marijuana use, it might be excessive time (pun meant) for employers with drug-testing insurance policies to rethink after they select to drug take a look at and whether or not to incorporate marijuana as one of many substances for which they take a look at. Though cheap suspicion and post-accident drug testing stay important instruments to make sure office security, employers want to noticeably contemplate whether or not it stays useful to proceed testing for marijuana, notably in pre-employment screenings. By conducting such screenings, employers could also be severely limiting their applicant pool and unnecessarily eliminating in any other case certified candidates who could also be participating in an exercise now as lawful as having a drink after work. Additional, it’s price noting that some jurisdictions, reminiscent of Nevada and New York Metropolis, really prohibit most employers from conducting pre-employment drug testing for the presence of marijuana. And different states, reminiscent of Illinois, prohibit employers from discriminating towards workers who have interaction in lawful actions outdoors of the office.
Though the variety of states that let each medical and leisure marijuana use continues to develop, you will need to keep in mind that marijuana stays an unlawful drug below federal legislation. Marijuana continues to be listed below the Federal Managed Substances Act as a Schedule I substance and the federal authorities has formally declared that marijuana has “no presently accepted medical use and a excessive potential for abuse.” As well as, some federal rules prohibit marijuana use by sure workers, even when their use complies with state legislation. Accordingly, in some circumstances, a failure to discriminate towards a medical marijuana cardholder or leisure marijuana consumer may trigger an employer to lose financial or licensing associated advantages below federal legislation or regulation. For instance, the federal Division of Transportation strictly prohibits marijuana use by workers employed in “security delicate” positions, even the place such use is authorized within the state the place they reside. The juxtaposition and outright battle between federal and state legal guidelines relating to marijuana use and possession has created a hazy dilemma (sure, once more) for employers since states first started passing such laws, and employers might want to proceed to remain within the weeds (three!) relating to their obligations below each state and federal legal guidelines.
In gentle of those new state legal guidelines legalizing each medical and leisure marijuana use, employers within the affected states ought to study their present substance abuse and drug-testing insurance policies and seek the advice of with their lawyer to make sure that they perceive the nuances of relevant state and federal legal guidelines and any related case legislation of their jurisdiction that will have an effect on their insurance policies. Keep in mind that though these new legal guidelines create broader protections for marijuana customers, none require employers to permit workers to own or use marijuana at work, or to return to or be at work whereas below the affect of marijuana. Due to this fact, regulating office marijuana use is inside the rights of employers in each state, and employers ought to be sure that their substance abuse insurance policies bluntly prohibit the use or possession of, or impairment by, medical or leisure marijuana whereas working or on firm property. Additional, employers in states the place each leisure and medical marijuana use is authorized ought to ensure that they perceive their completely different obligations to workers below each sorts of legal guidelines to make sure they don’t skirt their obligations to medical marijuana cardholders in relevant jurisdictions.
Lastly, on a associated observe, it’s price mentioning that on Election Day 2020, Oregon turned the primary state to decriminalize small quantities of “exhausting” medicine, together with cocaine, heroin, methamphetamines, and different Schedule I-IV medicine by Measure 110, the Drug Habit Therapy and Restoration Act. Though the Oregon legislation is silent with respect to employment and subsequently doesn’t impose any extra obligations or restrictions on employers, employers in Oregon ought to contemplate reviewing their substance abuse and drug-testing insurance policies and seek the advice of with counsel to find out if they need to revise points of their insurance policies in gentle of this new legislation.
 South Dakota voters moreover permitted medical marijuana use, and Mississippi voters additionally permitted medical marijuana use (however not leisure use), bringing the variety of states with medical marijuana use to 36 whole. For a complete record of states with legalized marijuana use – medical, leisure, or each – see right here.
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