AMMA Exemption Does Not Reach All Employees of Federal Contractors, Grantees

I have heard reports of employers announcing to all their workers that anyone who gets a card allowing possession of cannabis under the Arizona Medical Marijuana Act (AMMA) will be fired.  There are only a handful of employers who lawfully can take this strong stand.

One of the key issues employers need to address under the Arizona Medical Marijuana Act (AMMA) is whether they fit within the exemption to the antidiscrimination provision.  The statutory language is such that all employers are barred from taking adverse action against a person protected by the AMMA “unless the failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations.’  A.R.S. § 36-2813(B).  So the starting point of the analysis must be the recognition that most employers are subject to the AMMA’s ban on penalizing Cardholders licensed to possesses and, in some cases, use medical marijuana. 

An employer falls within the exemption only when federal law requires the employer to take an action as to each person protected by the AMMA.  The employer likely will have the burden in court of showing the exemption applies to the particular employee complaining of unlawful treatment.

So if there was some federal requirement under a grant or contract that some of your employees be able to pass a urine drug screen for the metabolites of marijuana, then you would be exempt from the AMMA's prohibition against, for example, penalizing a Qualified Patient (QP) for failing a drug test for marijuana metabolites only, so long as that QP is one for whom federal law required marijuana metabolite-free urine drug screens.

We already have seen that one major source of federal requirements relating to drugs does not require workplace drug testing or prohibit the employees of its contractors or grantees from using state-permitted medical marijuana outside of the workplace.  As discussed in the July 18, 2011 post , the federal Drug Free Workplace Act only prohibits the  possession or use of marijuana in the workplace.  The Act does not even require employers who are federal contractors or grantees to implement a drug testing program, and the federal Office of Management and Budget regards drug testing as only one possible component of a program of compliance.

So Arizona employers who hold federal contracts or grants should not assume merely by that status that they can take adverse actions against AMMA Cardholders.  The status of federal contractor or grantee alone does not bring the employer under the exemption.  To trigger the AMMA exemption, the employer must have additional federal obligations other than those  generally applicable to federal grantees and contractors under the Drug Free Workplace Act.

Recent Action by Obama Administration Bodes Ill for Medical Marijuana

In a July 14 post [link], I pointed out an opinion piece on CNN.com in which a presidential candidate was advocating legalization of marijuana.  According to a recent National Public Radio report, however, President Obama and his administration are strengthening the federal stance against marijuana, medical or otherwise.

 

The NPR report identifies three distinct ways the Obama administration has lashed out against marijuana in recent weeks:

• The White House on July 11 released its National Drug Control Strategy, which argued that marijuana is unsafe and addictive, while its use is at the highest level in the last eight years.
• The Drug Enforcement Administration in early July concluded a lengthy consideration of whether to reclassify marijuana, and decided against it.  Thus, marijuana remains classified as a Schedule I, the category reserved for drugs with no currently accepted medical use.
• The third strike against marijuana that the NPR report attributes to the Obama administration is familiar to Arizonans.  The report summarizes the statements by federal prosecutors that large-scale marijuana dispensaries are not immune from federal prosecution.

As Arizoneout readers know, the strong statements by federal prosecutors are what prompted state officials to halt the marijuana dispensary licensing program and file suit in federal court.

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.

Presidential Politics and Pot Policy

I came across an interesting opinion piece that appeared on CNN.com last week by Gary Johnson, former governor of our neighboring state, New Mexico, and a candidate (albeit a long-shot one) for the 2012 Republican presidential nomination.

Johnson, also known as "Governor Veto," has been advocating legalization of marijuana since 1999.  He came to that stance not because of asserted medical benefits of the substance, but because he concluded that the War on Drugs began by President Richard Nixon 40 years ago actually has not reduced drug use but instead has created a lucrative black market that empowered violent gangs and cartels.  In Governor Johnson's words, "it was like alcohol prohibition all over again, with similarly disastrous results."

When a candidate for president is advocating the legalization of marijuana, it makes the Arizona Medical Marijuana Act appear to be a fairly modest measure by comparison.

The ADA May Protect Arizona QPs

While we are on this side track, I’ll give a shout out to an intriguing argument that Qualified Patients (QP) are not excluded from full protection of the federal Americans With Disabilities Act (ADA) because of marijuana’s status as an illegal drug for all purposes under federal law.   I would like to link to the student-written note from the Spring 2009 edition of the Hofstra Labor & Employment Law Journal, but there is a mistake in the coding.  Here is the link to the issue, in hopes that the code is soon repaired.  It’s the last listing, “A Cruel Choice:  Patients Forced to Decide Between Medical Marijuana and Employment,” by Ari Lieberman and Aaron Solomon.

The law students’ premise is that the ADA’s definition of “illegal use of drugs” by its terms excludes medical marijuana use legal under state law.  That definition is:

The term “illegal use of drugs” means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act.  Such term does not include the use of a drug taken under supervision of a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of federal law.

42 U.S.C.12111(6)(A).

This definition ties into another ADA provision, 42 U.S.C. § 12114 which excludes employees and applicants engaged in the “current use of illegal drugs” from the scope of the law’s protections.  Because marijuana is an illegal drug for all purposes under federal law.

The student authors make the point that the first sentence of the definition of “illegal use of drugs” states the general rule, while the second sentence gives two separate exceptions to the general rule.  That’s a fairly uncontroversial statutory reading, based on the use of the word “or” in the second sentence.

Because most state compassionate use acts, including the AMMA, tie legal marijuana to a physician’s recommendation, the article argues that state-permitted medical marijuana use is “the use of a drug taken under supervision of a licensed health care professional.”  Therefore, medical marijuana use legal under the AMMA would not be removed from the protection of the ADA by the exclusion for the current use of illegal drugs provision.  Whether this argument will gain acceptance in the courts remains to be seen.

For the time being, however, cautious Arizona employers will consider the QPs in their workforce to be protected by the ADA, notwithstanding their use of a drug illegal under federal law.

Don’t Demand Employees Disclose Cardholder Status

There are so many issues implicating the workplace presented by the Arizona Medical Marijuana Act (AMMA), and they are all so interrelated that necessarily doomed to failure from the start was my plan for Arizoneout to start at the beginning and proceed logically and orderly through the key issues employers need to consider.  I feel a need to skip around a bit today.

I realized as I reviewed the last few posts about pot on the premises that employers very well might be thinking:

I don’t need to implement random searches of all my employees.  I just need to identify the AMMA Cardholders among them, tell them not to bring the stuff on the premises, and search their things to make sure they are abiding by my lawful instructions.

The flaw in that plan is that demanding that employees disclose whether they are AMMA Cardholders likely could be a prohibited inquiry under state and federal law.

Remember that the great preponderance of Cardholders today are Qualified Patients (QP) who have been granted licenses by the state to use marijuana to treat debilitating medical conditions.  I listed those debilitating medical conditions in my June 6, 2011 post.  It’s a very safe assumption that if a QP has a debilitating medical condition, then that QP is going to qualify as a disabled employee protected by both the Arizona Civil Rights Act (ACRA) and the Americans with Disabilities Act (ADA), particularly after the most recent ADA amendments.

Under both the ACRA and the ADA, an employer is prohibited from asking an employee whether the employee is disabled or the nature or severity of the disability unless the employer can show that the inquiry is “job-related and consistent with business necessity.”  42 U.S.C. § 12112(d)(4); A.R.S. § 41-1466

Asking an employee whether he or she is an AMMA Cardholder today is tantamount to asking if the employee has a disability.  Some employers may have a job-related need to know as to some employees who work in safety-sensitive positions.  But certainly all employers don’t have a need to know whether every single worker is a Cardholder.

In future posts, I will dive into the very large subject of what are safety-sensitive positions and how employers can inquire as to and treat workers with protected AMMA status.  For today’s post, however, the key point is that employers should not indiscriminately demand that all employees disclose whether they are AMMA Cardholders.  That’s because doing so could be deemed discrimination – and not under the AMMA, but under the state and federal laws prohibiting disability discrimination in the workplace.

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.

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.