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.