The following article is from AHA, a custom publication of Vowell, Inc., which also produces Arkansas Money & Politics.
By Stuart Jackson, J.D., Wright Lindsey Jennings
Now that the Arkansas General Assembly has passed and the Governor has signed into law House Bill 1460 (now known as Act 593, the Arkansas Medical Marijuana Amendment of 2016), employers in Arkansas have some level of clarity about what they can and can’t do when it comes to medical marijuana.
But, that clarity only goes so far and, in my mind, landmines still exist for employers, especially hospitals and medical care providers.
In this article, I will lay out the various protections both employees and employers have under the terms of the original Amendment and the modifications to the Amendment recently made by the General Assembly. I will also talk about how most Arkansas employers should plan for this fast-approaching reality.
1. Cannot discriminate against an individual (which includes not hiring, disciplining, failing to promote or terminating employment) or otherwise penalize an individual based upon the individual’s past or present status as a qualifying patient or designated caregiver – basically, you should think of this as another “protected class” under state law;
2. Cannot discipline a qualifying patient or designated caregiver for the medical use (which includes actual use or mere possession) of marijuana according to the Amendment if he or she possesses not more than 2½ ounces. Under the Amendment, a rebuttable presumption exists that a qualifying patient or designated caregiver is lawfully engaged in the medical use of marijuana if he or she is in actual possession of a registry identification card issued by the Department of Health and possesses an amount of usable marijuana that does not exceed 2½ ounces;
3. Cannot discipline a qualifying patient or designated caregiver for giving a permitted amount of usable marijuana to another qualifying patient or designated caregiver for medical use if nothing of value is transferred in return;
4. Cannot discipline a qualifying patient or designated caregiver for possessing marijuana paraphernalia to facilitate the use of medical marijuana;
5. Cannot discipline anyone for giving a “qualified patient” marijuana paraphernalia to use with medical marijuana; and
6. Cannot discipline a person for being in the presence or vicinity of the medical use of marijuana or for directly assisting a physically disabled qualifying patient with the medical use of marijuana.
“Qualifying medical conditions” presently include cancer, glaucoma, HIV/AIDS, amyotrophic lateral sclerosis, severe arthritis, posttraumatic stress disorder (PTSD), Tourette’s syndrome, hepatitis C, Crohn’s disease, fibromyalgia, Alzheimer’s disease, ulcerative colitis and any “chronic or debilitating disease or medical condition” with symptoms such as peripheral neuropathy, “intractable pain,” seizures, “severe” nausea or “severe and persistent” muscle spasms.
Of course, the protections in the Amendment are contingent on the patient or caregiver actually possessing a medical marijuana card issued by the Arkansas Department of Health.
First, the Amendment does not require an employer to “accommodate the ingestion of marijuana” in the workplace. So, unlike what might be considered the “normal” use of prescription drugs, Arkansas employers do not have to allow their employees to “light up” or ingest medical marijuana on their property.
Further, the Amendment states that nothing in its text permits a person to possess, smoke or use marijuana in a variety of locations, including schools of any type, alcohol or drug treatment facilities, community or recreation centers, public transportation and any “public places.”
Second, the Amendment does not require an employer to allow an employee to work “while under the influence of marijuana” and states that nothing in its text permits a person to undertake any task under the influence of marijuana “when doing so would constitute negligence or professional malpractice.”
Finally, the Amendment does not permit a person to operate, navigate or control any type of “motor vehicle, aircraft, motorized watercraft, or any other vehicle drawn by power other than muscle power” while under the influence of marijuana.
Act 593 adds other protections for Arkansas employers. Initially, it defines “employer” as those employers with nine or more employees. If you have fewer than nine employees, you may not have to worry about medical marijuana. Other provisions include:
• Allowing employers to have and enforce drug-free and substance-abuse testing policies that apply to both applicants and employees (which in some situations could be problematic under the original terms of the Amendment). Federal contractors are certainly happy to see this.
• 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.
• 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.
• Allowing employers 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.
These protections allow employers a wide variety of latitude when it comes to applicants or employees with a medical marijuana card. Employers are allowed (in certain situations) to refuse to hire an applicant, monitor and assess the job performance of an employee, reassign an employee to different job duties or positions, place an employee on paid or unpaid leave, suspend or terminate an employee, and even require successful completion of a substance abuse program.
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 about how they treat employees with a medical marijuana card. Knee-jerk reactions will not serve employers well, especially when they lead to the first lawsuits to be filed by employees with medical marijuana cards.
What could happen? A lot! You could get sued and face damages for months or years of lost wages and benefits. You could also face paying other types of compensatory damages, punitive damages and the terminated employee’s attorney’s fees and expenses. Plus, you might even have to reinstate the employee! Do not underestimate the consequences of running afoul of the medical marijuana laws.
1. 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 go overboard by claiming all of your jobs are safety-sensitive. If the greatest risk inherent in a given job is a paper cut, it is probably not going to be safety-sensitive, and if you take action against an applicant or employee based on a mistaken belief that a job is safety-sensitive, you could face a lawsuit and significant damages. Don’t lose your common sense.
2. For truly safety-sensitive positions, make it a requirement that an employee disclose to your HR Manager that he or she is using medical marijuana. It’s possible you already have a rule in place like this for prescription drugs that may impact an employee’s ability to safely perform the essential elements of his or her job.
3. 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.
4. Consider adding a drug-free workplace or substance abuse-testing policy to your employee handbook.
5. Talk to your Medical Review Officer about how positive tests for marijuana will be reported if the person tested (an applicant or employee) has a medical marijuana card.
6. Don’t lose sight of the fact that other employment laws, like the Americans with Disabilities Act and the Family and Medical Leave Act, may come into play not because of the use of medical marijuana, but because of an underlying health reason.
Arkansas employers will be faced with all sorts of scenarios in the coming months and years, from the medical marijuana user who is caught under the influence at work, to 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. Think through the various scenarios, make sure you understand the law, and be ready to make a reasoned decision on how to react.
William Stuart Jackson has been practicing in the labor and employment field for twenty-five years and heads up the Labor & Employment Team at Wright Lindsey Jennings in Little Rock. You can contact him at firstname.lastname@example.org.