Tuesday, July 5, 2011

The Case Against Adopting A No Pot On Premises Policy

Arizona employers could adopt a “No Pot on the Premises” policy if they chose to do so, even though the Arizona Medical Marijuana Act (AMMA) does not expressly give employers that right.  At least, that is the conclusion of recent Arizoneout posts.

The next question is whether Arizona employers should adopt a “No Pot on the Premises” policy.  The knee-jerk response is, yes, of course.  Marijuana is an illegal drug in all circumstances under federal law.  There is no legitimate reason for any employee to bring marijuana to work, even if the employee is a Qualified Patient (QP) or Designated Caregiver (DC) allowed to possess it.  The AMMA says employers can insist that employees not ingest medical marijuana at work or work while impaired, so there is no reason to have the stuff at work.

Not so fast.  I can envision many circumstances where QPs and DCs could have legitimate reasons to have marijuana in their possession on the premises.  For example, the QP with cancer in your workforce who comes to work unimpaired might need to eat that marijuana brownie during her light rail trip home so she will have an appetite for her evening meal.  The DC who grows marijuana for his QP grandmother, who lives near his office and to whom he is delivering some of the crops after his shift, might have the marijuana in his car.

Would it be discrimination to prohibit these hypothetical employees from bringing medical marijuana onto the workplace premises when you allow employees to bring other strong prescription medication to work?  (I’ll bet you don’t have a policy already in place against that.) 

Maybe.  The AMMA prohibits discrimination in “imposing any term or condition of employment” on a medical marijuana Cardholder, which includes both QPs and DCs.  There is certainly an argument to be made that it is discrimination to allow some employees to bring medication to work but to exclude medical marijuana. 

It will depend on whether the courts treat medical marijuana as any other legally prescribed medication or as an illegal drug.  Because I don’t think any Arizona employer wants to volunteer to be that test case, the safest course may be not adopting those “No Pot on the Premises” policies.

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