Now that the Arkansas Senate has passed HB1460 (the bill previously introduced and passed by the House covering employment-related issues for medical marijuana), employers in Arkansas finally have some clarity in what they can and can’t do. But, that clarity only goes so far.
The bill, which now goes to Governor Hutchinson for signature, modifies the Arkansas Medical Marijuana Amendment passed by the voters in November 2016 in several ways. While the amendment in its original form allowed employers to prohibit the ingestion of medical marijuana in the workplace and being under the influence of medical marijuana, the revisions allow additional things, such as:
- Having and enforcing drug-free and substance abuse testing policies that apply to both applicants and employees;
- Disciplining an employee if there is a good faith belief that he or she used or just possessed medical marijuana on site or during work hours;
- Disciplining an employee if there is a good faith belief that he or she was under the influence of medical marijuana on site or during work hours;
- Excluding a person (employees and applicants) from a safety-sensitive position if there is a good faith belief that he or she is a current user of medical marijuana.
The revisions allow employers a wide variety of latitude when it comes to applicants or employees with a medical marijuana card. Employers are allowed (in certain situations) to refuse to hire an applicant, monitor and assess the job performance of an employee, reassign an employee to different job duties or positions, place an employee on paid or unpaid leave, suspend or terminate an employee, and even require successful completion of a substance abuse program.
But, a word of caution — just because one has the right to do something under state law doesn’t necessarily mean that one should. With the mix of state and federal employment-related issues swirling around medical marijuana, employers need to be very careful how they treat employees with a medical marijuana card. Knee-jerk reactions will not serve employers well, especially when they lead to the first lawsuits to be filed by employees with medical marijuana cards.