CALIFORNIA AND ARIZONA EMPLOYERS SHARE RISKS OF NEW MARIJUANA INITIATIVES

The article below is from the Arizona Chamber of Commerce in its entirety followed by an article from the Orange County Register in California.  The exact same arguments can be made for California.  There is almost no doubt that this will pass in California but the supporters refuse to allow questions on their websites and will not address the legalities that will face employers.

Factor into all of this is the new drug testing (or non-testing) standard set by OSHA on a Federal level and employers are in a real bind if they try to keep drugs out of the workplace.  Under Federal OSHA you cannot drug test post-injury unless the use of drugs or alcohol would be considered the proximate cause of the accident AND the test must be able to establish that the employee was under the influence at the time of the accident.  Since there is no legal test for THC levels, you will not be able to test for or fire someone just because THC from marijuana is in their body.  This is a major problem that no one wants to address until attorney’s get ahold of it in a big trial and sue the owner because they were aware the employee had marijuana in their system and did not remove them from operating equipment.  Just wait!

Here is the story.  In California, it is Proposition 64.  Below the Arizona comments is a article from the Orange County Register in California regarding their proposition:

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The Arizona Chamber of Commerce and Industry and No on 205 this Thursday, October 27 at 2 PM are hosting a tele-town hall for employers who are concerned about the effect of legalized marijuana in their workplace. Call 1-877-229-8493, PIN 115868.  

The proposed Regulation and Taxation of Marijuana Act, otherwise known as Proposition 205, would massively affect existing Arizona law. Put simply, Proposition 205 would negatively impact Arizona law and policy in a variety of significant ways, including how job creators manage their workforce and workplace.

The Arizona Chamber of Commerce and Industry is proud to spearhead efforts to defeat this job-killing initiative. In Proposition 205’s 20 pages of conflicting and contradictory legalese, there are two key provisions that are particularly problematic for employers: proposed A.R.S. §§ 36-2860(A) and 36-2860(B). These two provisions, and Proposition 205 in general, are poised to wreak havoc on Arizona in a manner not disclosed in the initiative or acknowledged by its out-of-state marijuana industry backers.

The aforementioned provisions would upend Arizona’s employment laws in the following ways:

  • It would rob employers of the ability to take disciplinary action against employees who test positivefor marijuana, despite having a statutorily approved drug-testing policy. Want a drug-free workplace? Proposition 205 makes that more difficult.
  • It would create an environment for an avalanche of wrongful termination lawsuitsfor employers that fire employees for using marijuana on the theory that the termination was in violation of Proposition 205.
  • It would tangle Arizona businesses in a web of regulations that conflict with federal lawregarding safe workplaces, safe roads and transport, and safe foods. Does your business have federal contracts? Under Proposition 205, you’ll be forced to navigate two conflicting sets of laws.

Proposition 205 would be a trial lawyer’s dream. Compounded with the clashes above, these provisions would create conflict within laws related to various Arizona benefit programs, too. For example:

  • Proposition 205 would create a situation where, under Arizona’s welfare laws, marijuana would be considered both legal and illegal, resulting in costly litigation.
  • Proposition 205 would also create a situation where Arizona’s unemployment insurance laws would require a person to be denied benefits, yet it would also prohibit such denial, again resulting in costly litigation.
  • Lastly, it would be virtually impossible for Arizona employers to receive a statutory discount on workers’ compensation premiums for having a zero-tolerance drug-free workplace.

Propostion 205 is a mess. Its passage would harm employers’ ability to keep marijuana out of their workplace, whille exposing them to expensive lawsuits. Arizona job creators who are concerned about our state’s ability to continue to attract and grow jobs should vote no on Proposition 205.

WHAT:           Tele-town hall on Proposition 205’s effect on employers

WHEN:           Thursday, October 27 at 2 PM

HOW:              Call 1-877-229-8493; enter 115868 when prompted for a PIN

Glenn Hamer is the president and CEO of the Arizona Chamber of Commerce and Industry

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Why Prop 64 is about more than just smoking marijuana

By BROOKE EDWARDS STAGGS

2016-10-24 14:33:08

Proposition 64, on its surface, poses a simple question: Should people be free to smoke pot in California?

But the 62-page initiative on the Nov. 8 ballot asks voters to determine much more than that.

It asks them to decide how much cannabis Californians should be allowed to carry, whether they should be able to grow it in their homes and what, if any, penalties consumers should face going forward.

RELATED: Prop 64 to legalize marijuana: Who’s backing it, who’s fighting it and why?

It also asks them to weigh the future of a multibillion-dollar industry, including everything from how marijuana businesses should be taxed to what warning labels should appear on edible products.

Depending on who you ask, either the devil or the redemption is in those details.

Supporters call Prop. 64 the “gold standard” of marijuana legalization, touting strict safeguards that build on lessons learned by the four states that already allow recreational pot.

Some opponents say the measure doesn’t go far enough to keep kids and roadways safe, while detractors on the other end of the spectrum say the measure includes too many regulations to be true “legalization.”

With the vote about two weeks away, here’s a closer look at what Prop. 64 means for California.

PERSONAL RIGHTS

Prop. 64 would allow California residents and visitors 21 and older to buy, carry and give away up to an ounce of marijuana. That’s enough to roll perhaps 40 average-sized joints.

They also could possess up to 8 grams of concentrated cannabis, such as waxes or oils that can be vaporized or mixed into foods.

Under the measure, residents could grow as many as six pot plants at home and keep what they harvest. But the plants couldn’t be visible to the public. And local governments could regulate how they’re grown, including requiring that it be done indoors.

No one could consume recreational pot in public. Consumption would be allowed only on private property or in “cannabis cafes” licensed strictly for marijuana use.

The initiative would uphold laws against driving while impaired or having an open container of marijuana in a car. But it wouldn’t establish a threshold, as Colorado and Washington did, for how much THC (the compound in pot that makes users high) drivers could legally have in their blood.

Prop. 64 backers say that’s because blood alcohol content isn’t a good measure for marijuana impairment, since pot stays in the system long after its mind-altering effects have worn off. So the initiative would direct tax revenue to law enforcement and researchers to develop better tests for drugged driving.

The measure would protect employer rather than employee rights, allowing companies to hire and fire based on drug tests.

But the penalties for most marijuana-related crimes, which studies show disproportionately affect minorities, would be lower if the measure passes. Adults convicted of possession with intent to sell would get six months in jail rather than two years in prison, for example, while teens caught with the drug would get counseling and community service instead of criminal records. And those changes would be retroactive, meaning marijuana offenders could be released from jail or have their records expunged if the measure passes.

Prop. 64 also would uphold existing rights for medical marijuana patients, allowing them to still grow more pot than recreational consumers and access medical marijuana at 18 years old. They would face some additional taxes, though they’d also gain privacy and child custody protections.

If the measure is approved, all of these personal rights would take effect the day after the election, on Nov. 9.

BUSINESS PLAN

It would take a bit longer for the taxed and regulated recreational marijuana industry promised by Prop. 64 to take shape.

Shops would start to open on or before Jan. 1, 2018.

That’s the date California officials expect to start issuing licenses to all medical marijuana growers, manufacturers and sellers under industry regulations signed into law in 2015.

Prop. 64 would largely extend the same regulatory framework to recreational marijuana production, with requirements for licensing, testing, child-resistant packaging, limited advertising and tracking pot from seed to sale.

The initiative would establish a 15 percent sales tax, plus a tax by weight for growers. That would be on top of taxes local governments tack on and regular state sales tax, though medical marijuana users would be exempt from the latter.

Small- and medium-sized businesses would get an edge coming out of the gate, since Prop. 64 bans large-scale cultivation for the first five years. But after Jan. 1, 2023, there would be no state cap on the size of marijuana farms.

Cities and counties would still have authority to regulate, tax or ban marijuana-related businesses in their borders. Many have already started passing laws in anticipation of Prop. 64, with 62 local measures related to marijuana on the ballot Nov. 8.

THE OUTLOOK

Nearly every poll on Prop. 64 suggests it will pass – though perhaps narrowly. Recent polls have ranged from 51 percent to 71 percent support, with many averaging around 60 percent.

But advertising to defeat Prop. 64 is being aired. And in California the popularity of measures often shifts in the final days before an election.

If the measure becomes law, industry experts predict that California’s legal weed market will reach $6.5 billion by 2020 and potentially spur legalization throughout the country.

The Legislative Analyst’s Office anticipates that tax revenue from the measure could top $1 billion annually, with the justice system potentially saving tens of millions more on enforcement costs.

The revenue won’t go to state or local general funds. Instead, it will be set aside to fund youth prevention programs, marijuana research, better drugged driving tests, environmental remediation and grants to impacted communities.

The impact legal marijuana has on highway safety, teen use and crime isn’t yet clear. There are conflicting reports coming out of states such as Colorado and Washington, which approved legal pot in 2012. And experts say they need more years of reliable data before they have definitive answers.

More research is also needed on how recreational marijuana use ultimately affects health and achievement, with particular concern over today’s increasingly potent pot. But studies increasingly suggest that, while marijuana consumption may pose some risks for young people and the mentally ill, responsible use appears to have little impact on healthy adults.

With valid concerns on both sides of the issue, Dr. Igor Grant, who heads up the Center for Medical Cannabis Research at UC San Diego, said it’ll be up to voters to weigh the impacts of prohibition against potential impacts of legalization.

“There’s a cost-benefit analysis that voters have to make,” he said.

Contact the writer: 714-796-7963 or bstaggs@ocregister.comTwitter: @JournoBrooke

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