Phoenix last month revised the substance-use policy for most of its more than 14,000 employees and only prohibit being high at work. Police and aviation employees, as well as some workers in federally regulated positions, are still prohibited from off-hours use.
"Employees who do not occupy positions that prohibit the off-duty use of marijuana must not use marijuana off duty in any way that could cause impairment at work or would adversely impact job safety, job performance, or customer service," reads the updated policy.
Scottsdale made similar revisions in January, and Glendale and Tempe are currently in the process of revising their policies, spokespeople told Phoenix New Times. Maricopa County spokesperson Fields Moseley said the county's current policy is focused on preventing impairment at work, with special restrictions on some “safety sensitive positions.”
Cities say their changing policies are in response to Proposition 207, which passed in November with widespread support from voters. And while the new law legalizes adult consumption of marijuana without a prescription, a local employment attorney warns that it's not a free-for-all.
"It means that you don't get arrested, not that you don't lose your job," said Julie Pace, a Gammage & Burnham attorney who practices employment law and does training sessions on substance use for employers. She said that after Prop 207 passed, the companies she works with had a "slew" of incidents where employees were lighting up on breaks or bringing edibles to work, thinking it was allowed under the new law.
Employers are allowed to stop you from coming to work high, as Phoenix's and Scottsdale's policies now reflect, and unlike medical marijuana patients, recreational users do not have protections baked into the law if they do have to undergo testing, Pace said.
However, questions still remain about how employers could detect unauthorized use. While Pace said there are saliva tests that can detect recent marijuana usage, the commonly used urine test can return a positive result for usage weeks in the past.
"Our policy requires behaviors and signs/symptoms of impairment to be observed at work before conducting a reasonable-cause test," Phoenix spokesperson Vielka Atherton said in an email. "The drug test is not able to distinguish between use on or off duty, however, the combination of observed behaviors and drug test results are used to assess whether the employee is impaired during work hours."
That impairment standard is key, Pace said. It doesn't matter why someone is impaired — it could be prescription drugs, it could be a lack of sleep — if an employee is clearly impaired, an employer is free to take action.
Phoenix's policy requires a supervisor to document signs of impairment before requiring a test, and says it's preferable for two people to document the signs if possible. But those signs are open to interpretation. Among those listed in Phoenix's policy: red eyes, sleeping at work, increased carelessness, and "unusual" behavior.
Pace says she recommends employers have a manager document at least two signs of impairment by an employee before taking action and that courts will generally defer to their observations. If employees are worried about testing positive, they should get a medical card, she said.
"If you want the full protection, you don't want to have to worry about that: get the medical marijuana card," she said.
While medical marijuana patients still can't work impaired, they enjoy protections under the law that can negate a positive cannabis test result. Some local doctors who issued med cards told New Times last year that they weren't worried about legalization because the additional workplace protections would keep people coming back.
Not everybody is changing their policies. The state's pot regulator, the Arizona Department of Health Services, has no plans to change its current requirements, which already only covered workplace usage and impairment, said spokesperson Steve Elliott.