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 voters may have the opportunity to cast ballots in November 2022 on a proposal to legalize recreational marijuana.
The proposed amendment, entitled “The Arkansas Adult Use Cannabis Amendment,” is sponsored by Responsible Growth Arkansas. It would allow anyone 21 years or older to possess up to one (1) ounce of “adult use cannabis” authorized by the amendment. Beginning on March 8, 2023, all types of usable cannabis, including any inventory produced under the Medical Marijuana Amendment (Amendment 98), would be available for wholesale and retail sale. Regulation would be left to the Alcoholic Beverage Control Division, the Department of Health and the Medical Marijuana Commission. The proposed amendment contains no provisions expunging any past marijuana-related convictions, but would use revenue from the tax on adult use cannabis for law enforcement, cancer research, and drug courts.
The big employment question – how will the recreational amendment (if it passes) interact with the various medical marijuana rules that apply to Arkansas businesses? Our guess is that it won’t have much if any impact if employers have done their homework and implemented sound medical marijuana workplace policies. Medical marijuana has its own rules under Amendment 98 that protect businesses in various ways, including those employing people in safety-sensitive positions. The proposed recreational amendment will not prohibit employers from enforcing substance abuse or drug-free workplace policies. In fact, it states, “Nothing in this amendment shall limit the ability of employers to establish drug-free workplace policies restricting the adult use of cannabis.”
However, there are some significant legal distinctions between recreational and medical marijuana to keep in mind. Here’s one scenario in particular – two of your employees in the same job (one that is not safety-sensitive) test positive for THC during a random drug test; one has a medical marijuana certification and one does not. Because employers will be able to enforce substance abuse and drug-free workplace policies, the employee without the medical marijuana certification could face discipline of some form, even termination of employment. However, the situation with the other employee is more complicated. Under the state rules that apply to medical marijuana, a positive drug screen is not enough to discipline a person with a medical marijuana certification working in a job that is not considered safety-sensitive – there must be some other indication of impairment. One employee may get fired and another spared, even if both have THC in their systems and work in the same job.
We think there is a significant chance that the recreational amendment will pass if it makes it on the November ballot. Why do we think that? Amendment 98 (which introduced medical marijuana to Arkansas) passed with more than 53% of the vote in 2016, and a recent Talk Business poll indicated that 53% of likely voters favored legalizing recreational marijuana. Societal attitudes towards recreational use continue to relax as well. Numerous states, including Illinois, Michigan, Virginia and North Carolina, have decriminalized marijuana to some extent or enacted laws specifically allowing recreational use. Because of this, employers (including Arkansas banks) should have recreational marijuana on their radars. Consider talking to your employees about recreational and medical marijuana usage on or off the job, and have clear employment policies on both.
Stuart Jackson is a partner on the Wright Lindsey Jennings Labor & Employment Team and a member of the Firm’s Banking Law Group. His practice of late has included assisting Arkansas businesses (including banks) with the implementation of medical marijuana and other handbook policies and offering advice on a variety of employment-related issues.