Arizona 2020 voters decidedly adopted Proposition 207 – The Smart and Safe Arizona Act – which legalizes the possession and use of marijuana by adults age 21 and over for recreational or non-medicinal use. The initiative passed with roughly a 20% margin. This means that Arizona will join the 14 other jurisdictions (Alaska, California, Colorado, District of Columbia, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, Washington, and 2020 election newcomers Montana, New Jersey and South Dakota) that have made adult recreational marijuana use legal under local law. Arizona lawmakers have until April 5, 2021, to promulgate implementing regulations. Qualified early applicants (likely including existing medical marijuana dispensaries) can begin applying for retail licenses with the Arizona Department of Health Services in January 2021, and these licenses could be awarded as early as February 1, 2021.

Proposition 207 does not make marijuana use a free-for-all in Arizona. Rather, several critical restrictions were included in the initiative that protect an employer’s right to regulate work-related drug use. Specifically, the initiative “does not restrict the rights of employers to maintain a drug-and-alcohol-free workplace or affect the ability of employers to have workplace policies restricting the use of marijuana by employees or prospective employees.” Likewise, an employer is not required “to allow or accommodate the use, consumption, possession, transfer, display, transportation, sales or cultivation of marijuana in a place of employment.” The initiative similarly does not restrict employers’ right to “prohibit or regulate conduct otherwise allowed by [Arizona law] when such conduct occurs on or in their properties.” The initiative also specifies that it “does not allow driving . . . while impaired to even the slightest degree by marijuana.” And, like other types of smoking, smoking marijuana remains illegal in public places, as restricted by the Smoke-Free Arizona Act.

Despite states legalizing marijuana use, federal law continues to deem the use and possession of marijuana and marijuana products illegal.  Therefore, federal employees or employees in federally regulated jobs are still prohibited from using marijuana. Nevertheless, given the relative swiftness with which recreational marijuana could be available, it is a good time for employers to take a critical look at their drug and alcohol policies, including those relating to drug testing, and clearly communicate to their workers what the company expects.

If an Arizona company requires applicant or employment drug testing, remember that the previously passed voter initiative, the Arizona Medical Marijuana Act, prohibits employers from discriminating against any person who uses marijuana for medical reasons as permitted by state law because of “positive drug test for marijuana components or metabolites, unless the [employee] used, possessed or was impaired by marijuana on the premises of the place of employment of during the hours of employment.” A.R.S. § 36–2813.

Further, Arizona has long had an “opt-in” employee drug-testing statute that, if an employer follows its mandates, generally protects the employer from liability associated with acting on test results. To meet the requirements of that statute, an employer must adopt a policy that includes information such as when a test will be required (e.g., pre-employment, reasonable suspicion, post-accident, random, etc.), what substances will be tested for, a description of the testing methods and collection procedures used, and provisions addressing the confidentiality of the test results. The advent of recreational marijuana makes this a good time for employers to revisit and update their policies to ensure employees are aware of the employer’s expectations and that the policy reflects the employer’s current practices for drug and alcohol testing. The law regarding a company’s ability to control employees who may be using marijuana or other drugs continues to evolve, and employers should therefore discuss their policies and practices with employment counsel.