In the Workplace 2018: Medical Marijuana: Getting Ready for Summer

This is the last in a series of articles by Wright Lindsey Jennings’ labor and employment team examining key trends for employers and the workplace in 2018. The series was featured in Arkansas Business. When the Arkansas Medical Marijuana Amendment passed just over a year ago, businesses with employees in the Natural State were not quite sure how to deal with the issue. Many questions were being asked, including would all Arkansas employers be covered and how would those businesses ensure the safety of all employees?

With the passage of Act 593 by the General Assembly, employers in Arkansas now have some clarity about what they can and can’t do when it comes to medical marijuana. But that clarity only goes so far.

Employment-Related Provisions

From an employment perspective, the original terms of the amendment gave “qualifying patients” who had “qualifying medical conditions” and “designated caregivers” (those who have agreed to assist disabled qualifying patients with the medical use of marijuana) certain protections in the workplace.

For instance, under the amendment:

1. Employers cannot discriminate against an individual (which includes not hiring, disciplining, failing to promote or terminating employment) or otherwise penalize an individual based upon the individual’s past or present status as a qualifying patient or designated caregiver – basically, you should think of this as another “protected class” under state employment law;
2. Employers cannot discipline a qualifying patient or designated caregiver for the medical use (which includes actual use or mere possession) of marijuana in accordance with the amendment if he or she possesses not more than 2 ½ ounces;
3. Employers cannot discipline a qualifying patient or designated caregiver for giving a permitted amount of usable marijuana to another qualifying patient or designated caregiver for medical use if nothing of value is transferred in return; and
4. Employers cannot discipline a qualifying patient or designated caregiver for possessing marijuana paraphernalia to facilitate the use of medical marijuana or for giving another “qualifying patient” marijuana paraphernalia to facilitate the use of medical marijuana.

Of course, the protections in the amendment are contingent on the qualifying patient or designated caregiver actually possessing a medical marijuana card issued by the Department of Health and a permissible amount of medical marijuana from a state dispensary.

Earlier this year, the General Assembly passed and Gov. Asa Hutchinson signed into law Act 593, which modified the amendment’s provisions to provide significant protections for employers (now specifically defined as those with 9 or more employees in Arkansas), including:

1. Allowing employers to have and enforce drug-free and substance-abuse testing policies that apply to both applicants and employees (which in some situations could be problematic under the original terms of the amendment). Federal contractors are certainly happy to see this;
2. Permitting the discipline of an employee if there is a good faith belief that he or she used or possessed medical marijuana on site or during work hours;
3. Permitting the discipline of 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; and
4. Allowing employers to exclude a person (an employee or an applicant) from a safety-sensitive position, as defined by the amendment, if there is a good faith belief that person is a current user of medical marijuana. Be sure to note the difference between simply being a current user and actually being under the influence at work – a current user might never be under the influence at work.

But, a word of caution — just because one has the right to do something under the protections added by Act 593 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. For example, anyone possessing a medical marijuana card may very well have a disability covered by the Americans with Disabilities Act and the Arkansas Civil Rights Act. Knee-jerk personnel decisions will not serve employers well.

Medical Marijuana Discrimination Claims

Let’s say you make a mistake with one of your employees – for instance, you misclassify a job as safety-sensitive and decide to terminate an employee based on his current medical marijuana cardholder status.

What could happen? A lot — you could get sued and face damages for months or years of lost wages and benefits. You could also face paying other types of compensatory damages, punitive damages and the terminated employee’s attorney’s fees and expenses. Plus, you might even have to reinstate the employee!

Do not underestimate the consequences of running afoul of Arkansas’ medical marijuana law.

Planning for Medical Marijuana

Even though medical marijuana probably won’t be available in Arkansas until the latter half of 2018, start planning now. Here’s a list of things to do:

1. Take a hard look at your written job descriptions, especially the ones you consider to be safety-sensitive. Update them as needed and be sure to indicate in writing which ones are in fact safety-sensitive. But don’t lose your common sense when determining whether a job is safety-sensitive.
2. For truly safety-sensitive positions, make it a requirement that an applicant or employee disclose to your human resources manager that he or she is using medical marijuana. The timing of the disclosure for applicants could be tricky – we suggest after a conditional offer of employment has been made.
3. Make sure your handbook is up-to-date and include in it prohibitions against the use and possession of medical marijuana at work or during work hours (if you so choose) and being under the influence of medical marijuana at work or during work hours.
4. Talk to your MRO about how positive tests for marijuana will be reported if the person tested (an applicant or employee) has a medical marijuana card.
5. Don’t lose sight of the fact that other employment laws, like the Americans with Disabilities Act, the Family and Medical Leave Act or the Arkansas Civil Rights Act, may come into play not because of the use of medical marijuana, but because of an underlying health issue.

Arkansas employers will be faced with all sorts of scenarios in the coming months and years – from the long-time employee who is legitimately in need of medical marijuana to the employee who posts a video on Facebook of himself or herself using medical marijuana at home.