The discussion surrounding medical marijuana use in Arkansas around the potential issues that it brings to our state, including the impact it will have on employees’ rights, has been pervasive since the passage of a Constitutional Amendment in the 2016 general election. The Department of Health has received thousands of applications for medical marijuana cards, and employees are bringing them to their workplaces. While some questions will remain unanswered for now, the Arkansas Legislature has presented guidance to use in preparing for this new frontier.
Act 593 of 2017 (The Arkansas Statute) was passed in the 2017 legislative session. It was designed to provide guidance and protections for employers who seek to maintain a drug-free workplace while respecting employees’ rights. Some key definitions are worth noting, and employers should take a hard look at current personnel policies relating to employee drug testing.
The consumption or being under the influence of marijuana while at work or otherwise performing work is still illegal under federal law, regardless of the legality of its purchase in the state of Arkansas. The Arkansas Statute protects employers who act on a “good faith belief” that an employee ingested or was under the influence of marijuana in the workplace. An employer’s “good faith belief” can be based on a variety of factors, including the employee’s conduct or appearance. However, a failed drug test – standing alone – will not be sufficient to create a “good faith belief.” Additional evidence must be presented.
The Arkansas Statute created an exception to the “good faith belief” provision for employers that have safety-sensitive jobs, which includes construction workers. The statute defines a “safety-sensitive position” as any position designated as such by state or federal law, or positions that an employer designates in writing as safety sensitive. The statute includes a list of affected positions.
Because of the threat of danger inherent in these positions, employers may exclude an employee from working in a safety-sensitive position based on a good faith belief that the employee used marijuana. In other words, an employer may maintain a zero-tolerance policy for safety-sensitive positions; the employer need not demonstrate a good faith belief that the employee was under the influence. Employers may continue to implement a drug-free workplace policy that complies with state or federal law. Thus, even if an employee is a registered card-holder, employers who use The Arkansas Statute to design sound policy and maintain proper documentation can reassign, suspend, terminate, or even decline employment under certain circumstances.
Arkansas courts will be refining the rights of medical marijuana users and employers for years, and your company most likely does not want to become a test case! Currently, companies should determine safety-sensitive positions. Such positions should be clearly spelled out in a job description, which should be shared with employees who hold those positions (as well as future applicants). In addition, now is a good time to review drug testing standards and consider hiring a third-party drug testing company that has a medical review officer and certified lab.
Putting your company in a position to respond to an employee who tests positive for medical marijuana before it happens in your workplace can save you time, stress, and possible liability.
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GREGORY J. NORTHEN | ATTORNEY