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When the voters of Arkansas passed the Arkansas Medical Marijuana Amendment in November 2016, employers were not quite sure how to deal with the issue. Many questions were being asked, including a) would all Arkansas employers be covered, b) what rights and protections would employers have, and c) when would medical marijuana be available?
The passage of Act 593 by the General Assembly in 2017 provided some answers, but it only went so far. The biggest question now – timing – is in the hands of the Arkansas Medical Marijuana Commission, the courts and an outside consultant.
Act 593 Clarified Employer Obligations Regarding Medical Marijuana
In early 2017, the General Assembly passed and Governor Hutchinson signed into law Act 593, which provided significant protections for employers (now specifically defined as those with 9 or more employees in Arkansas), including:
- Allowing employers to have and enforce drug-free and substance-abuse testing policies that apply to both applicants and employees;
- 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 in violation of an employer’s policy;
- 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 in violation of an employer’s policy; and
- Allowing an employer to exclude a person (an employee or an applicant) from a safety-sensitive position 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.
The Big Question: When Will Medical Marijuana Be Available?
When the Amendment first passed, many thought medical marijuana would be available to Arkansans by the end of 2017. As the complexity of the issues became apparent, that timeline was pushed back to early 2018, and then mid-to-late 2018. Now, with court challenges still a possibility and the Arkansas Medical Marijuana Commission hiring a consultant to score dispensary applications, the best answer seems to be, “Who knows?”
The courts got involved in a big way in March 2018 when a Pulaski County Circuit Court Judge concluded that the Commission’s licensing process and decisions relating to the pending award of five cultivation facility licenses “violated Amendment 98 to the Arkansas Constitution . . . violated due process of law, resulted from improper procedure, and were arbitrary and capricious.” The Arkansas Supreme Court reversed that decision, basically finding that the plaintiffs jumped the gun by filing their complaint too early. See Arkansas Department of Finance and Administration, et al., v. Naturalis Health, LLC, et al., No. CV-18-356 (Arkansas Supreme Court June 21, 2018). But, the most interesting part of the Supreme Court’s opinion was Chief Justice Kemp’s concurring opinion, which (although short) packed a powerful punch:
This court will not rewrite administrative-agency rules, nor will it substitute its judgment and discretion for that of the agency. See, e.g., Wright v. Ark. State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992). The court may, however, reverse an agency decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are in violation of constitutional provisions or made upon unlawful procedure. See Ark. Code Ann. § 25-15-212(h)(1), (3) (Repl. 2014).
The MMC has a constitutional duty to adopt rules necessary for its “fair, impartial, stringent, and comprehensive administration” of the Arkansas Medical Marijuana Amendment. See Ark. Const. amend. 98, § 8(d)(3). I urge the MMC to review its rules and procedures and to cure any deficiencies. (emphasis added).
The Commission decided to forge ahead with the five original picks for the cultivation facilities, although complaints and protests concerning those five picks have been turned over to the enforcement arm of the state’s Alcohol Beverage Control division for “investigation and, if warranted, adjudication by ABC.” This had already been in the works since the Commission has no real mechanism to investigate complaints, but stay tuned – things could get even more interesting if one of the successful cultivation applicants is disqualified. Additionally, during its July 12 meeting, the Commission began considering the possibility of hiring an outside consultant to score the 203 pending dispensary applications for the 32 available licenses, and in fact asked the state’s Legislative Council to approve a rule to allow it to do so. The Legislative Council approved the rule on July 19, and shortly thereafter, an outside consultant was selected to score the dispensary applications.
Where does that leave things? With more legal and other challenges possible, it is hard to tell, but things seem to be moving forward again. However, medical marijuana probably won’t be available until sometime in 2019.
Planning for Medical Marijuana
Even though medical marijuana probably won’t be available in Arkansas until 2019, start planning now – it’s going to get here eventually. Here is a list of things to do:
- 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.
- For truly safety-sensitive positions, make it a requirement that an applicant or employee disclose to your HR 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.
- 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.
- 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.
- Don’t lose sight of the fact that other employment laws, like the Americans with Disabilities Act, the Family and Medical Leave Act and the Arkansas Civil Rights Act, may come into play not because of the use of medical marijuana, but because of an underlying health issue.
Once medical marijuana becomes available, Arkansas employers will be faced with all sorts of scenarios – 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 to whether a job is legitimately characterized as “safety-sensitive.” Mistakes in handling employee use of medical marijuana will result in lawsuits and the types of damages and costs one sees in discrimination litigation. Think through the various scenarios, make sure you understand the law, and be ready to make a level-headed decision on how to react.
—- Stuart Jackson
Stuart Jackson has been practicing in the labor and employment field for over twenty-five years and heads up the Labor & Employment Team at Wright Lindsey Jennings, and as of late has been focused on medical marijuana and wage and hour collective and class actions. You can contact him at wjackson@wlj.com.