In the Workplace 2017: How Arkansas Employers Can Deal with Medical Marijuana

Editor's Note: This is the first of five articles this week by the labor and employment team at the law firm of Wright Lindsey Jennings of Little Rock examining key trends for employers and the workplace in 2017. Here's a quick look at important employment issues that could arise next year.

Now that Arkansas is the latest state to have a medical marijuana law on the books, Arkansas employers must be prepared to address this issue.

Although the amendment to the Arkansas Constitution is effective immediately, it should take some time for most Arkansas residents to take advantage of the approved use of medical marijuana given the regulatory and administrative mechanisms that must be put into place. Arkansas has just 120 days to promulgate rules to implement the amendment.

Employment-Related Provisions

From an employment perspective, the new law allows "qualifying patients" who have "qualifying medical conditions" certain protections in the workplace.

For instance, employers:

1. Cannot "discriminate" against a person (that includes not hiring, disciplining, failing to promote or terminating one's employment) or otherwise penalize a person based upon that person’s past or present status as a "qualifying patient" or "designated caregiver";

2. Cannot discipline a "qualifying patient" for the medical use (which includes actual use or mere possession) of marijuana in accordance with the amendment if he or she possesses not more than 2 ½ ounces. Under the amendment, a rebuttable presumption exists that a "qualifying patient" is lawfully engaged in the medical use of marijuana if he or she A) is in actual possession of a registry identification card and B) possesses an amount of usable marijuana that does not exceed 2 ½ ounces;

3. Cannot discipline a "qualifying patient" for giving a permitted amount of usable marijuana to another "qualifying patient" for medical use if nothing is transferred in return;

4. Cannot discipline a "qualifying patient" for possessing marijuana paraphernalia to facilitate the use of medical marijuana; and

5. Cannot discipline anyone for giving a "qualified patient" marijuana paraphernalia to facilitate the use of medical 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. The Department of Health may add to this list in the future.

Significant Compliance Issues for Employers

Given this new law, how do you respect the rights of an employee who has permission to use medical marijuana, yet protect other staff and customers?

Answer: It depends on a variety of issues discussed below.

Are you a federal contractor? Federal contractors could have their hands full given the tug-of-war between federal and state law on this issue. Federal law still considers marijuana an illegal drug, although there are some legal prescription drugs, like Marinol, that contain THC or other marijuana derivatives.

For those of you who are federal contractors, you are in luck — most courts believe federal law preempts state medical marijuana laws on this issue. Still, if you decide you are a federal contractor, it would not hurt for you to seek guidance on the medical marijuana issue from the federal agency involved with the contract.

Differing obligations under the Americans with Disabilities Act and the Arkansas Civil Rights Act. Arkansas employers might have different obligations under the federal Americans with Disabilities Act (ADA) and the state Arkansas Civil Rights Act (ACRA), which mirrors the ADA in various ways.

For instance, while the ADA would not protect the use of medical marijuana by a person with a disability — it would consider it an illegal drug — the ACRA would not prohibit its use. So, you could face a situation in which it was perfectly legal to fire an employee under the ADA for medical marijuana use, but not legal under the ACRA, and chances are the ADA would not preempt the ACRA on this issue.

Perhaps the best approach to this issue is to think about medical marijuana like any other prescribed medication — what would you normally do if an employee was taking a prescription drug that could impact his or her ability to safely perform the essential functions of the job? Typically, you should have your HR manager (not the employee's direct supervisor) forward the relevant job description to the employee’s doctor and ask in writing A) whether the employee can safely perform the essential functions of the job, B) what is the duration of the health condition that requires the medical marijuana prescription and C) whether the doctor suggests any accommodations. We typically advise employers to allow the employee to take the written request for information to the doctor.

If the doctor raises concerns about the employee's ability to safely perform the essential functions of the job, you may have to consider an "accommodation" for the employee, such as leave while using medical marijuana or a transfer to a non-safety sensitive job.

The impact on workers' compensation claims. There are also implications under Arkansas' workers' compensation laws.

One particular statutory section that defines compensable injuries states, "The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician's orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician's orders."

In other words, there used to be a rebuttable presumption that a workplace injury was non-compensable if the employee tested positive for marijuana.

With the passage of the amendment, if medical marijuana use by an employee who is injured on the job is not inconsistent with a physician's orders, the previous presumption about the cause of the injury disappears. More injuries will be considered "compensable."

What Actions Can You Prohibit?

First, the new amendment does not require an employer to "accommodate the ingestion of marijuana in a workplace."

So, unlike the normal use of prescription drugs, Arkansas employers do not have to allow their employees to "light up" or otherwise use marijuana on their property. In fact, the amendment states that nothing in the new law permits a person to possess, smoke or use marijuana in a variety of locations, including schools, school busses, alcohol or drug treatment facilities, community or recreation centers, public transportation or any "public place."

Second, the new amendment does not require an employer to allow an employee to work "while under the influence of marijuana." Additionally, the amendment 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.

What to Do Now

Here is our list of things to do for now:

1. Take a hard look at your job descriptions, especially the ones you consider to be safety-sensitive. Update them as needed with the assistance of your employment lawyer.

2. For truly safety-sensitive positions, make it a requirement that an employee disclose to your HR manager or other senior manager that he or she is using medical marijuana or any other "regular" prescription drug that could impact the employee's ability to safely perform the essential elements of the job.

3. Make sure your handbook is up-to-date and include in it prohibitions against the use of medical marijuana at work and being under the influence of medical marijuana at work.

We suspect the Arkansas Department of Health or the General Assembly will fine-tune the amendment to help everyone understand their obligations, so stay tuned.

Additionally, we can’t be sure at this point whether the Trump administration will take a harder line on medical marijuana than the Obama administration. All sorts of questions remain about the provisions of the amendment, many of which seem contradictory.

(Stuart Jackson heads up the Labor & Employment Law team at Wright Lindsey Jennings in Little Rock.)