Jaburg Wilk


Medical Marijuana Can be a Tricky Issue for Arizona Employers

Categories: Employment, Article

arizona employment law medical marijuana

In 2010, Arizona voters approved a medical marijuana law that applies to most employers. Generally, the law states that it is unlawful for an Arizona employer to refuse to hire (or terminate) an employee simply because they have a medical marijuana card. There are, however, some important limitations or things to know.

When Arizona employers are conducting a drug screen for new hires or a random drug test of all employees, they can ask an employee if they have a medical marijuana card. Employers can also wait until an employee fails a drug test for marijuana and then ask if they have a medical marijuana card. If the employee proves they have a card, the employer cannot discriminate against the employee.

Although employees cannot be discriminated against because they have a medical marijuana card, employees cannot be impaired by medical marijuana while at work.

The law also has an exception for "safety sensitive" positions. It specifically states that a safety sensitive position is one that the employer, in good faith, believes could affect the safety or health of the employee or others while performing their job duties. The statute identifies several types of job duties that can be designated as safety sensitive:

  • Operating a vehicle, equipment, or machinery and tools.
  • Repairing, maintaining, or monitoring the performance of such equipment.
  • Employees who travel to customers' homes to perform their duties.
  • Employees that handle food and medicine.
  • Employee working in any occupation regulated pursuant to Title 32, which includes almost every type of licensed professional in Arizona.

In sum, there are a lot of safety sensitive exclusions, but office workers (not regulated by title 32) are not working in a safety sensitive position.

Employers need to specifically state, in writing, which employees are safety sensitive. The best practice is to state in the job duty description whether a position is safety sensitive and briefly explain why.

Even if a certain position is clearly a safety sensitive position, employers are not required to maintain a zero-tolerance policy as to medical marijuana cards. In other words, it is not unlawful to allow a truck driver to have a medical marijuana card. Generally, if an employee uses marijuana after work, the impairing metabolites leave their body by the time they report to work the following day.

Regardless of what parameters are chosen, all Arizona employers should adopt a medical marijuana policy.

About the Author: Jeffrey Silence is a partner at the Phoenix law firm of Jaburg Wilk.  He has helped many employers draft handbooks and medical marijuana policies.