by Erika Gee, Government Relations Attorney, and Stuart Jackson, Labor & Employment Attorney, of Wright Lindsey Jennings
After years of public discussion in Arkansas about medical marijuana, in November 2016, 53 percent of the voters approved a constitutional amendment to legalize it, now known as the medical marijuana amendment.
Beginning in December 2017, the state worked furiously to enact laws and rules to create an entirely new regulatory structure and set out the guidelines for a merit-based selection of licensees for marijuana cultivation facilities and dispensaries. The applications for cultivation facilities and dispensaries were due to the Medical Marijuana Commission (MMC) in September 2017. As of the date of this writing, the cultivation facility license winners have been preliminarily announced, followed by multiple legal challenges. The Medical Marijuana commissioners are expected to complete scoring for the dispensary license applications in early summer. If all of the current and future legal challenges are resolved quickly, we can expect the first medical marijuana to be available for purchase sometime in 2019.
The medical marijuana amendment legalizes the use of marijuana by patients who are certified by a physician to have one of 18 specific “qualifying” medical conditions, including cancer, Crohn’s disease, fibromyalgia, peripheral neuropathy and intractable pain. Patient groups are expected to petition the state to add new qualifying conditions.
It does not authorize growing marijuana at home, possession of marijuana by anyone who is not a registered as a qualifying patient or caregiver, or legalize the recreational use of marijuana.
Here’s a look at the basics of the law.
Patients and Caregivers
In order to become a qualifying patient, a patient over 18 must submit “written certification” from a physician establishing that the patient has a qualifying medical condition to the Arkansas Department of Health.
A common misconception is that physicians will prescribe or otherwise affirmatively recommend that a patient should use medical marijuana, which many physicians are uncomfortable or unwilling to do. But the certification requires only that a physician confirm that the patient has been diagnosed with a qualifying condition. Residents of other states may also qualify to obtain medical marijuana while visiting in Arkansas, if the visiting patient presents a medical marijuana patient registration card from another state.
All information regarding patients and caregivers is designated as confidential and cannot be released under the Arkansas Freedom of Information Act. This means that employers, landlords and other interested parties will not be able to confirm whether an individual is registered as a qualifying patient. The other regulating agencies may access registry information, if necessary, and the Arkansas Department of Health is also authorized to verify registry status — but no more — to law enforcement personnel.
The medical marijuana amendment created a wide-open product market, with no limits on the types of medical marijuana or delivery vehicles. Concern over the hazards of smoking and access by minors was a focus of last spring’s legislative session and agency rulemaking and, as a result, there are some new limits on what may be sold.
Act 1024 prohibits dispensaries from selling any paraphernalia requiring combustion to be properly utilized, so dispensaries cannot offer pipes, rolling papers or similar devices to patients. Act 740 prohibits patients from smoking marijuana anywhere that smoking tobacco is prohibited, in the presence of a pregnant woman or someone under 14 years old, inside any motorized vehicle or in a place that is likely to cause a person who is not authorized to use it to become under the influence. It also prohibits patients under 21 from smoking marijuana at all.
The agency rules prohibit the sale of any marijuana item with a shape or design likely to appeal to minors, including anything modeled after an item primarily consumed by or marketed to children; products in an animal, vehicle, person or character shape; items which resemble cookies or brownies; products that closely resemble familiar food or drink items, including candy; or any product incorporating commercially available candy, food or drink.
Medical Marijuana in the Employment Setting
From an employment perspective, the original terms of the medical marijuana amendment gave “qualifying patients” who had “qualifying medical conditions” certain protections in the workplace. For example, under the amendment 1) employers cannot discriminate against an individual or otherwise penalize an individual just because the individual has been certified to receive medical marijuana; 2) employers cannot discipline a qualifying patient for giving a permitted amount of usable marijuana to another qualifying patient for medical use if nothing of value is transferred in return; and 3) employers cannot discipline a qualifying patient for possessing marijuana paraphernalia to facilitate the use of medical marijuana.
Not just anyone benefits from these protections – they are all contingent on the qualifying patient actually possessing a medical marijuana certification card issued by the Arkansas Department of Health and a permissible amount of medical marijuana from a state dispensary.
In 2017, the General Assembly passed and Governor Hutchinson signed into law Act 593, which modified the amendment’s provisions to provide significant protections for employers (now defined as those with nine or more employees), including:
- Allowing employers to have and enforce state and federal law compliant drug-free and substance-abuse testing policies;
- 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 or was under the influence of medical marijuana on site or during work hours;
- Allowing employers to exclude a person from a safety-sensitive position, if there is a good faith belief that person is a current user of medical marijuana. Any designation of a job as safety-sensitive must be in writing.
But, a word of caution — with the mix of state and federal employment-related issues swirling around medical marijuana, employers need to be very careful how they prepare for medical marijuana and how they treat employees with a medical marijuana certification card. Knee-jerk decisions, especially in the work context, never serve employers well.
So how should employers get ready? Although medical marijuana will not be available in Arkansas until (at the earliest) the latter half of the year, start planning now. Among other things, 1) take a hard look at your written job descriptions, especially the ones you consider to be safety-sensitive, and update them as needed (being sure to indicate in writing which ones are in fact safety-sensitive); and 2) make sure your handbook is up-to-date and consider including in it prohibitions against the use and possession of medical marijuana at work or during work hours and being under the influence of medical marijuana at work or during work hours.