How Does AZ Prop 207 Passing Effect Employers?

On November 3rd 2020 Arizona voters passed Proposition 207, legalizing the use of recreational marijuana in Arizona.  Many companies are asking how does this affect both our Department of Transportation regulated and our drug free workplace drug testing programs.  The short answer is it should have very little impact on your existing drug & alcohol testing program.

Testing programs mandated by the U.S. Department of Transportation for safety-sensitive employees fall under Federal law, which supersedes State regulations, with respect to these employees.  The Department of Transportation’s Drug and Alcohol Testing Regulation, 49 CFR Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason.  USDOT does not permit a Medical Review Officer (MRO) to verify a drug test as negative based upon learning that the employee used “recreational marijuana”, “medical marijuana”, or a CBD product.

Proposition 207 amends Title 36 of the Arizona Revised Statutes.  A.R.S. 36-2851 addresses employers, driving, minors, control of property, and smoking in public places and open spaces.  A.R.S. 36-2851 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.  It does not require an employer to allow or accommodate the use, consumption, possession, transfer, display, transportation, sale, or cultivation of marijuana in a place of employment.  It does not allow driving, flying, or boating while impaired to even the slightest degree by marijuana.

Our recommendation is that you read through your existing company drug & alcohol testing policy and update it with language to reflect that your company does not permit or allow the use of medical marijuana or recreational marijuana by its employees.  It is advisable to have your attorney review your policy to ensure that it is compliant with all State regulations relating to drug free workplace programs and recreational & medical marijuana.