Resolve To Adopt Defensible Workplace Policies On Medical Marijuana

On this the first work day of 2012 in most places of employment, it is an appropriate time to reflect on the past year and resolve to make changes for the year ahead.  In my professional discussions about the Arizona Medical Marijuana Act (AMMA), I find that employers typically have not had to confront the issue and thus are not taking proactive steps to develop policies they can defend.

Nevertheless, the number of Qualified Patients (QPs) licensed by the state to use medical marijuana continues to grow.  The Arizona Department of Health Services (ADHS) has not yet issued its year-end report, but as of November 25, 2011, more than 16,000 QPs had ADHS-issued ID cards making their use and possession of limited quantities of marijuana legal under state law.

According to the U.S. Census bureau, Arizona had 134,000 private, non-farm employer establishments in 2009.  So by a very rough estimation, we should expect that about 10 percent of Arizona employers have a QP among their workers.

There is no one-size-fits-all template for good medical marijuana policies that all employers should adopt.  But here is a good checklist of questions to ask in developing a defensible policy that meets your individual business needs: 

• Do my existing policies prohibit what the AMMA allows employers to prohibit − ingestion of medical marijuana in the workplace and working while impaired by the use of medical marijuana?
• Do I fall within the exemption that allows discrimination against protected AMMA Cardholders, because failing to do so would cause the employer to lose a monetary or licensing related benefit under federal laws or regulations?  The exemption is narrow and applies mainly to certain employees in the transportation industry.  See the July 25 and August 3 posts
• Do I have employees working in such safety-sensitive positions that they need to be transferred out of those positions for the duration of their treatment with medical marijuana? See the December 13 post.  
• What is my existing drug testing policy, and does it comply with the Arizona Drug Testing of Employees Act?  If not, what can I do to bring it into compliance?  See the September 23, 27, 29 and October 7, 12, 19, 21 and 24 posts.
• Do I have a business need to bar my employees from bringing medical marijuana onto the premises and, if so, how can I enforce the policy? See the June 24 and 30 posts.

While it is a complicated analysis, it is one every Arizona employer should undertake.  Arizona workers are using marijuana lawfully for medical purposes.  Resolve in 2012 to stop ignoring that reality.