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If you’ve been watching the media, you know that medical marijuana dispensaries are opening up in Arkansas. Hot Springs led the charge with the first two locations, and now dispensaries in Clinton, Helena-West Helena and Hensley are open or about to open.
A significant protection written into the Arkansas Medical Marijuana Amendment (via Act 593 of 2017) is the ability of Arkansas employers to designate jobs as “safety-sensitive.” Employees who are current users of medical marijuana and who work in jobs that are correctly characterized as safety-sensitive can be placed on paid or unpaid leave, reassigned to different jobs or job duties, or even terminated. However, given that a lot of conditions that qualify for medical marijuana certification also qualify as serious health conditions under the Family and Medical Leave Act or disabilities under the Americans with Disabilities Act and the Arkansas Civil Rights Act, you may need to consider leave as a possible accommodation for any employee in a safety-sensitive position. Other possible accommodations include a transfer to a vacant job position that is not safety-sensitive (you don’t have to create one) or a short-term transfer of safety-sensitive duties. Each situation will vary from the next.
So, what is a safety-sensitive job? If a lapse of attention by someone in a job while under the influence of medical marijuana could result in “injury, illness or death,” then it’s probably safety-sensitive. Importantly, you need to designate safety-sensitive status in writing. You don’t have to designate a job’s status on the job description – it could be a memo you post in the employee breakroom – but having it on a job description makes a lot of sense. Something as simple as “THIS IS A SAFETY-SENSITIVE JOB FOR PURPOSES OF THE ARKANSAS MEDICAL MARIJUANA AMENDMENT” at the top of the job description should do. [Side note – now is a good time to review your job descriptions to ensure they are accurate.]
Designating safety-sensitive positions is a key thing all Arkansas employers should be doing. While the roll-out of medical marijuana has been slow, it’s now here. Sooner or later, one of your employees in a safety-sensitive position will be certified. Be sure you are ready.