Here's the Truth Behind Claims That Legalization Will End Workforce Drug-Testing for Weed

Opponents of a ballot measure to legalize marijuana in Arizona threaten a looming catastrophe of liability lawsuits for employers.

From the start, Arizonans for Responsible Drug Policy, an anti-legalization political action committee led by conservative radio show host Seth Leibsohn and Yavapai County Attorney Sheila Polk, has maintained (see PDF below) that the initiative known as the Regulation and Taxation of Marijuana Act (RTMA) would take away employers' control over their own business operations.

If Arizona voters approve the measure, drug-testing policies that are legal now will remain legal. — Ryan Hurley, lawyer for the Campaign to Regulate Marijuana Like Alcohol

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Last week, representatives of a prominent segment of the state's business community engaged in similar anti-pot saber rattling.

"With a statutory right to use marijuana built into the RTMA and employers only allowed to restrict use in the workplace, an employer will not be able to use a positive drug test for marijuana as a cause for discipline prior to an accident," David M. Martin, president of the Arizona chapter of Associated General Contractors of America, and developer Karrin Kunasek Taylor write in an op-ed the Phoenix Business Journal (subscription required) published last week. "Our business climate will take the hit."

Yet, the proposed RTMA does not aim to prohibit employers from continuing to screen for drugs, nor does it alter the current negative consequences for those who test positive. It states:

"[The RTMA] does not require an employer to allow or accommodate the possession or consumption of marijuana or marijuana products in the workplace and does not affect the ability of employers to enact and enforce workplace policies restricting the consumption of marijuana and marijuana products by employees."

In fact, cannabis-rights supporters who oppose the act because they think it's too conservative have targeted that very paragraph.

"YOUR EMPLOYER CAN FIRE YOU FOR USING MARIJUANA LEGALLY AT YOUR OWN HOME!" Jason Medar blares in all caps in one of eight "con" arguments he filed in the state's official publicity pamphlet regarding this November's ballot initiatives.

David M. Martin didn't return messages requesting clarification of his op-ed argument.
Ryan Hurley, a lawyer for local dispensaries and a backer of the RTMA, says the act means exactly what it says: If Arizona voters approve the measure, drug-testing policies that are legal now will remain legal.

Hurley acknowledges that the drug-screening debate zeroes in on the fuzzy line where personal life ends and work life begins. After all, a person might test positive days or weeks after last using marijuana, making it difficult to determine when he or she was impaired. But Hurley believes that where pot is concerned, the line will become clearer as marijuana's place in American culture and the nation's legal system continues to come into focus.

"This was never about whether employers get to fire you or not," he argues. "Employers ought to be more concerned about the status quo and felony arrest records."

Hurley also takes issue with the argument put forth by Arizonans for Responsible Drug Policy (ARDP) that when it comes to drug testing or anything else, legalization would confer upon marijuana users special rights that don't apply to users of alcohol, tobacco, or other legal substances.

The ARDP objects to language in the initiative that reads, "Notwithstanding any other law, except as otherwise provided in this chapter, it is lawful in this state and may not be used as the basis for prosecution, penalty or seizure or forfeiture of assets for a person who is at least twenty-one years of age to [use or possess marijuana]."

Even if the "penalty" in question is termination from one's job, Hurley says, the "notwithstanding" part applies to drug testing, which, after all, is included in the "chapter" (i.e., the proposed new law).

"You can read those two parts harmoniously," Hurley argues. "Continued employment is not a 'penalty,' it's a conferred benefit. And if one of the conditions of employment is to remain drug free, that would remain the same."

The proposed RTMA states, "This chapter does not authorize any person to engage in and does not prevent the imposition of any civil, criminal or other penalty on a person for … performing any task while impaired by marijuana or a marijuana product that would constitute negligence or professional malpractice." 

The ARDP has interpreted the passage as meaning that "employers will only be able to take adverse action against a marijuana-using employee if the employee is (1) actually impaired on the job, and (2) 'performing' a task that would (3) 'constitute negligence or professional malpractice.'"

Phoenix employment attorney John J. Balitis, who says he has no stake in the election, believes the ARDP may have a point here. Balitis, a director at the law firm Fennemore Craig, says a recreational marijuana user who is fired after a positive drug test might file a lawsuit arguing that the law only prohibits employees under the influence of marijuana from performing tasks negligently or in a manner that constitutes professional malpractice. In other words, that working while high is okay, as long as one doesn't screw up.

Hurley concedes that legal questions and court cases likely would arise. But he points out that passage of medical-marijuana laws in Arizona and other states resulted in the tightening of protections for employers who drug-test.

In 2011, for instance, the Arizona State Legislature passed a law that clarified which types of sensitive jobs were subject to drug testing and redefining what constitutes impairment. It's unclear whether the law was necessary. But today, 100,000 Arizonans legally use marijuana on a medicinal basis, and employers still drug-test. If anyone should complain, it's medical-marijuana users who thought they'd have more protection under the 2010 law.

Balitis and the ARDP worry the new act might nullify that 2011 law, and, in turn, expose employers to liability if they refuse to hire people who consume marijuana in their off-time, as well as liability from accidents caused by marijuana users. Hurley disagrees, reiterating that drug-testing would remain the status quo.

It's worth noting that Sheila Polk and other medical-marijuana opponents argued in 2010 that if Arizona voters approved medical marijuana, employers would face "disaster" because they'd be unable to weed out  applicants or employees who tested positive for marijuana. The same concerns were raised in Colorado, Oregon, and Washington, but courts have ruled consistently in recent years that employers have the right to fire people who use marijuana, even when the use is medicinal.

The notion that the system will remain in working order has strong precedent in Colorado, where voters approved Amendment 64 in 2012.

The Colorado law contains wording very similar to Arizona's regarding an employer's right to restrict employees' marijuana use, and the Denver Metro Chamber of Commerce had taken a position against Amendment 64 in part because of fears that employers would lose control of their drug-free workplaces, says Laura Giocomo, the group's vice president of communications and marketing. But those scenarios have not come to pass.

In fact, unemployment in Denver has dropped to 3.3 percent — far below the national average of 4.9 percent. New businesses are popping up and tourism has set new records in the last couple of years.

"In terms of workforce development and economic development, we haven't seen big changes," Giocomo says. "People are still flocking to Denver. We don't have a shortage of smart, qualified workers here."

Of course, that hasn't prevented critics of legalized marijuana from spinning Colorado's employment stats as a negative.

Last year the Colorado Springs Gazette published an op-ed entitled "Drug Use a Problem for Employers," which the ARDP and other prohibitionists have widely distributed as evidence of a problem Arizona ought to avoid.

One of the sources quoted in the opinion piece is Leona Wellener, who owns a Colorado Springs staffing agency. According to the op-ed, Wellener believed "marijuana use has compromised Colorado's workforce" and said that more than half of her company's applicants in February 2015 had tested positive for THC.

But now, Wellener tells New Times that marijuana use is simply one of many factors that may prevent people from obtaining a position during these boom times.

"We're having a hard time finding people in general," Wellener says. For some, marijuana use is a barrier to employment. For others, it's "horrible work histories, no applicable skills, or [that they] can't pass a background check. Marijuana use is part of what we're dealing with."

Wellener says that personally, she has no problem with marijuana users as a rule. Her clients do, though, because they want a drug-free workplace.

She adds that she has no opinion about Arizona's legalization initiative. But when informed that the state currently enforces a zero-tolerance, felony prohibition on marijuana, she remarks, "That's ridiculous."

Read Anti-Legalization Literature From Arizonans for Responsible Drug Policy: