On November 3, 2020, Arizona became 1 of 4 states to legalize cannabis this year. With the passing on Arizona Proposition 207, legal adults (those 21-years-old and older) will be able to consume, possess and transfer up to an ounce of cannabis, legally. Proposition 207 will also result in a regulated system for the sale and cultivation of legal cannabis.
This isn’t the first time that Arizona residents have found a cannabis bill on their ballots. In the 2016 election, a similar measure failed to pass by 3 points. Opinions about cannabis have changed since the 2016 vote, however. In a Monmouth University poll in October, 56% of those polled showed support for Proposition 207 ahead of the election.
Proposition 207 differed from the previous measure by also incorporating a plan to clear those who previously have marijuana convictions on their criminal records, as well as laws for home growers.
Interestingly, Arizona’s Governor Doug Ducey was an opponent of Proposition 207. As in 2016, he asked the state’s voters to once again vote against passing the measure, saying that: “The current system with medical marijuana is serving the people who need it for health-related reasons.” Gov. Ducey has also said that opening the state to wholesale expansion isn’t necessary and the state doesn’t need the headache that a full-scale legalization effort will bring.
Unfortunately, for Gov. Ducey, the voters of Arizona disagreed, and approved the measure by an overwhelming majority.
What to know about Arizona Proposition 207
Here are some important specifics about what Proposition 207 means for Arizona residents:
- Adults 21 and over are allowed to possess, transfer and use up to an ounce of marijuana
- Adults 21 and older are permitted to cultivate of up to 6 marijuana plants at a person’s primary residence
- Smoking marijuana in public spaces is still prohibited
- The laws surrounding the criminal classifications of marijuana will be amended
- The penalties for the possession and use of marijuana will be lowered
- The state will begin permitting licensed businesses to sell marijuana
- There will be a 16% excise tax on marijuana sales to benefit the following:
- Community colleges
- Public health programs
- Public safety
- The state will establish laws regulating those licensed to sell and produce marijuana
- The court system will begin to clear those charged of certain adjudications, arrests, charges, convictions, and sentences for marijuana
For the full details about Proposition 207, you can read the entire measure.
Be aware that the passing of Proposition 207 does NOT mean that you can go out today and legally smoke marijuana. This is because election officials still need time to finish counting all the votes and the measure needs to be certified by the state. We expect this to occur on November 30, 2020. Most experts suggest that those wishing to partake in Arizona’s new marijuana-friendly laws should wait until after this date to ensure they’re within their legal rights.
Marijuana and workers’ compensation
So, what does the passing of Proposition 207 mean for workers’ compensation in Arizona?
Let’s start at the beginning. Marijuana litigation isn’t new to Arizona.
In 2010, Arizona voters passed the Arizona Medical Marijuana Act (Proposition 203), which made it legal for a qualified physician to prescribe medical marijuana to patients with debilitating medical conditions to help treat (or alleviate the pain of) their condition. The way the act was written specifically detailed that individuals could not use government medical assistance to purchase medical marijuana, nor would private insurance carriers be required to reimburse for medical marijuana. However, nothing in the law mentioned workers’ compensation.
In 2015, Governor Ducey signed Arizona House Bill 2346 into law. HB2346 was an amendment to the Medical Marijuana Act, which stated that the law would not require self-insured employers and workers’ comp carriers to reimburse injured workers who were prescribed medical marijuana.
Insurers and employers cited concern over employee cannabis consumption while on the job and whether said consumption played a role in how a worker was injured.
As the 2020’s election has shown, what many people refer to as the “green wave” (or the increasing adoption of marijuana legalization laws) is growing—and with it, a need for further clarification of marijuana laws.
The biggest hurdle to overcome is the disparity surrounding marijuana’s legal status. While marijuana is fully legal in 11 states, and medical marijuana is legal in 33 states, it is still federally illegal.
Additionally, even in the states where medical marijuana is legal, patients using medical cannabis are not covered by the Americans with Disabilities Act. This means that it is up to individual states to provide protections or not to disabled workers.
For these reasons and more, there are likely to be inconsistencies in workers’ comp laws by state.
Another prominent issue with workers’ compensation and marijuana surrounds drug testing. Generally, employers are allowed to enact company policies that prohibit impairment (whether by drugs or alcohol) while at work. Such policies are important for safety—especially in industries where heavy machinery, driving or public safety are involved.
The problem is that drug testing can’t differentiate between medical marijuana and recreational marijuana, nor can it distinguish between on-duty and off-duty consumption. Unlike alcohol, THC remains in the blood system for weeks after consumption.
Some states have policies in place that protect those who are registered medical marijuana users from discrimination on the job. But not all states are so accommodating. In fact, many states have rules in place that make it clear that any marijuana use is restricted. In such cases, employers may seek to deny workers’ compensation benefits for injured workers who test positive for marijuana, despite the fact that it’s legal in the state, on the grounds of impairment at the time of their accident.
In Arizona, employees still have to battle the Arizona Drug Testing of Employees Act (DTEA). Under the DTEA, employers are allowed to take action on any employee who tests positive for drugs, as well as anyone who refuses to submit to drug testing. If an employer is successful, the insurance carrier would deem that the employee is responsible for their own medical costs.
Thankfully, the Arizona Medical Marijuana Act protects medical marijuana users from discrimination.
Once Proposition 207 officially becomes law, it could be reasonable that instances of common workplace accidents, especially those involving car accidents and slip and falls, could see an increase in drug testing.
As the laws change, it is important for employers and employees alike to keep themselves informed about their rights. Likewise, workers’ compensation cases might become even more difficult to navigate. For this reason, it’s always a good idea to consult an experienced workers’ comp attorney in the event that you’re injured while on the job—especially if you rely on medical marijuana to treat a condition.
If you’ve been injured at work, contact the Law Offices of Robert E. Wisniewski for your free consultation.