In the Workplace 2022: Recreational Marijuana Stands a Real Chance Next Year

This is part of a series of articles by Wright Lindsey Jennings’ labor and employment team examining key trends for employers and the workplace in 2022, authored by attorney Stuart Jackson. The series was featured in Arkansas Business. 

As the federal government keeps flirting with decriminalizing marijuana and leaving it to the states to regulate, and as more states pass recreational marijuana measures, Arkansas ballot proposals are multiplying.As of Dec. 10, we know of at least three proposed recreational marijuana amendments seeking to get on the November 2022 ballot:

1. Arkansas True Grass was the first to file its proposed amendment, the Arkansas Recreational Marijuana Amendment of 2022. The amendment, if passed, would allow anyone age 21 or older to do a variety of things with recreational marijuana, including purchasing up to 4 ounces of smokable or vaporizable marijuana from a dispensary per day, and cultivating, possessing, purchasing and transporting up to 12 recreational marijuana plants.The proposal also has a provision on driving under the influence of marijuana (setting the standard based on the level of THC in a person’s bloodstream) and would leave regulation of recreational marijuana to the Arkansas Agriculture Department and the Alcoholic Beverage Control Division.Finally, a list of previous marijuana-related convictions (including possession, possession with the intent to distribute and possession of marijuana paraphernalia) would be expunged from all criminal records in the state.
2. The Arkansas Adult Use and Expungement Marijuana Amendment would allow residents of Arkansas age 21 or older to possess and cultivate a limited amount of marijuana for personal use beginning Dec. 8, 2022. Dispensaries would be allowed to sell recreational marijuana.The proposed amendment places no limitations on what employers can do in terms of employee use and possession at work, and states it does not impact Amendment 98 to the Arkansas Constitution on medical marijuana.The proposed amendment also would create a procedure to expunge prior felony or misdemeanor convictions involving no more than six mature marijuana plants, less than 16 ounces of marijuana or marijuana paraphernalia.
3. A third proposed amendment is in the works by an organization named Responsible Growth Arkansas, but not a lot is known publicly about it as of early December, other than the organization stating it will “advocate for the passage of an amendment to the Arkansas Constitution to allow the regulated sale of adult use cannabis in the state.”Former state Rep. Eddie Armstrong is chair of the ballot question committee. (Full disclosure: A couple partners of mine are representing the organization proposing this amendment. The only information I have is public.)

To get on the ballot, each proposed amendment will need to submit to the Secretary of State more than 89,000 verified signatures in support by early July 2022.

The big employment question – how will any recreational marijuana law that passes interact with the various medical marijuana rules that apply to Arkansas businesses? Our guess is any successful recreational amendment won’t have much impact since medical marijuana has its own separate rules in Amendment 98 that protect businesses in various ways, including those employing people in safety-sensitive positions.

There will be some distinctions to keep in mind. Here’s one potential scenario – two of your employees test positive for THC during a random drug test; one has a medical marijuana certification and one does not.

Assuming none of the three proposed amendments will prohibit an employer from enforcing a drug-free workplace policy, the employee without the medical marijuana certification is on really thin ice and could face discipline. However, the situation with the other employee (assuming she is not in a position that is safety-sensitive) is more complicated.

Under the rules that apply to medical marijuana, a positive drug screen is not enough to terminate the employment of a person with a medical marijuana certification – there must be some other indication of impairment. One employee may get fired and another spared, even if both have the same level of THC in their system and work in the same job.

We tend to think there is a better-than-even chance that one of these amendments, if they all make it on the ballot, will pass. Why do we think that? Amendment 98 (which introduced medical marijuana to Arkansas) passed with more than 53% of the vote in 2016, and societal attitudes towards recreational use continue to relax. Numerous states, including Illinois, Michigan, Virginia and North Carolina, have decriminalized marijuana to some extent or enacted laws specifically allowing recreational use.

Employers should have recreational marijuana on their radars – they should consider what policies to have in place to ensure their workplaces are safe from any potentially intoxicating substance (not just marijuana) and understand the employment law distinctions between recreational and certified medical use.