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.