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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 2023, authored by attorney Stuart Jackson. The series was featured in Arkansas Business.
While a lot of Arkansas businesses were focused on the prospect of recreational marijuana over the course of 2022, many have chosen to ignore medical marijuana since sales began in 2019.
During several HR presentations/panel discussions on the legalization of marijuana over the past year, I’ve asked the attendees (primarily HR professionals) to raise their hands if their businesses had a medical marijuana policy. At best, around 60% had a policy in place.
Of course, my polling techniques are anything but scientific. But, that level of indifference (or maybe a desire just not to think about it) could cause lots of problems for employers in 2023. And it’s a bit frustrating because Arkansas law hands employers significant rights when it comes to employees who are certified medical marijuana users:
- Arkansas law allows employers to bar employees from possessing, using or being under the influence of medical marijuana at work or during work hours
- Arkansas law allows employers to bar current users of medical marijuana from safety-sensitive jobs, even if those employees (or applicants) are never in possession or under the influence at work
How does an Arkansas business exercise these rights that the state has handed them? Simple — draft a medical marijuana policy and designate, in writing, those jobs it believes are safety-sensitive.
I’ve always thought a written job description was the ideal place for the safety-sensitive designation, but as long as it’s in writing, the designation could be just about anywhere. Just be sure the job is in fact safety-sensitive. Safety-sensitive positions include jobs that require carrying a firearm; performing life-threatening procedures; working with hazardous or flammable material, controlled substances, food or medicine; and working with confidential information or documents pertaining to a criminal investigation, among others.
There is a catch-all definition for safety-sensitive that is pretty broad, as well — those jobs in which a lapse of attention could result to injury, illness or death.
With a just a trickle of lawsuits out there being filed present day, employers shouldn’t wait until litigation gets more active. Go through the process now of drafting a medical marijuana policy and designating, in writing, those jobs that are in fact safety-sensitive. It’s an easy way to provide yourself protection under Arkansas law.