Wednesday, July 6, 2011

Enforcement Of No Pot On Premises Policy Would Be Tricky

Another reason not to adopt a “No Pot on the Premises” policy is the difficulty Arizona employers would have enforcing it.  I am reluctant to wade too deeply into the murky legal swamp of employee privacy rights.  That could be – and probably is – its own blog.  But it seems to me the only way to enforce a No Pot on the Premises policy would be to conduct searches of employee bags, work areas, and vehicles. 

Even a “search everything” policy would not be completely effective, as I understand that edible marijuana products often are not easily distinguishable from their THC-free counterparts.  What are you going to do – buy a drug-sniffing dog?

If you are insistent on adopting a No Pot on the Premises policy, however, you should know the basic law on employee privacy rights.  Here are the key points.

The sources of employee privacy rights differ depending on whether the employer is a public or private entity.  If a public entity, then employees have Fourth Amendment protections against unreasonable searches.  Private employers have common law duties not to intrude upon the privacy of their employees if the intrusion would be highly offensive to a reasonable person.  The constitutional protections of the Fourth Amendment can come into play even in a private employment context if the company calls in the police.

But regardless of the source of the protection, there is a risk of liability for an employer who searches the belongings of its employees, even when those belongings are on the employer’s premises.  There are no bright-line rules, but courts generally balance the intrusiveness of the search against the employer’s need to conduct it, and require that in any event the employer use the least intrusive means possible.

Each case is different, and if your employee decides to sue, you may not know until the jury comes back with its verdict whether you had the right to search that particular employee’s purse or backpack.

If you are going to conduct searches of employee property, for medical marijuana or for any other reason, then you need to have a clear and well-disseminated policy alerting your workforce that their belongings, vehicles, whatever, are subject to searches.  That is because some courts have held that when an employer has such a policy, then the employee does not have a reasonable expectation of privacy that can be invaded.

If your work environment is not one now where employee searches are the norm – such as where the workplace is full of small and very valuable items, making the temptation to steal too great to avoid them – is keeping legal marijuana out really so important that you would institute searches just to enforce a No Pot on the Premises policy?  That’s something to think about, regardless of your stance on whether Arizona voters were wise to adopt the Arizona Medical Marijuana Act.

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