Employers Subject to Federal Drug-Free Workplace Act Already Must Ban Pot on Premises

In a July 5, 2011 post I made the case against adopting an express policy barring medical marijuana on the premises.  A subset of Arizona employers already should have policy in place that bans marijuana in the workplace  − those subject to the federal Drug Free Workplace Act.

In general, the Act applies to any person or entity awarded a federal grant or a federal contract worth more than $100,000 to purchase goods or services that are not commercially available.  The U.S. Department of Labor has a website that helps you determine if you are subject to the requirements of the Act.

Arizona employers subject to the Act must publish a policy statement notifying employees that the "unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the . . . workplace and specifying the actions that will be taken against employees for violations of the prohibition."  The words in bold are the keys for understanding how the federal Act intersects with the Arizona Medical Marijuana Act (AMMA).

The term "controlled substance" is linked to the federal Controlled Substances Act, specifically those drugs in Schedules I through VII.  Marijuana is classified as a Schedule I drug under federal law, meaning it is has no currently accepted medical use in treatment in the United States.  There is no lawful use of drugs on Schedule I under federal law.  Thus, Arizona employers subject to the Drug Free Workplace Act must have a policy that prohibits possession of marijuana on the workplace premises. 

One of the reasons that I generally advise against a complete  "No Pot on the Premises" policy for Arizona employers is that it could be considered discriminatory under the AMMA to allow employees to bring strong prescription or even over-the-counter medications into the workplace while banning medical marijuana.

The AMMA's language protects employers subject to the Drug Free Workplace Act from liability for such discrimination by express terms.  This is one place that the introductory language of the AMMA's antidiscrimination provision  − words that we will dissect in greater detail in future posts − clearly applies.  That language specifically allows discrimination against AMMA Cardholders, because "failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulation."  A.R.S. § 36-2813(B).

Employers subject to the Drug Free Workplace Act who fail to comply can have their contracts or grants terminated and be barred from receiving future ones.  Thus, to the extent that the AMMA otherwise may be interpreted to require employers to allow Cardholders to bring pot onto the premises, employers who are federal grant recipients or covered federal contractors are exempt from that requirement.  Their No Pot on the Premises policies can remain in effect notwithstanding the AMMA.