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Pot Talk: Questions Surrounding Marijuana Legalization and Employment

Categories: Legislative, Employer

Arkansas State Chamber of Commerce and Associated Industries of Arkansas: Business matters.

Arkansas voters will see two ballot initiatives supporting the legalization of marijuana for medical use this November. If either initiative passes, employers should be prepared to address the complex workplace issues that will inevitably arise as employers seek to juggle newly created protections for marijuana users with maintaining a safe and productive workplace.

The Arkansas ballot initiatives would create remarkably broad civil and criminal protections for marijuana users in the workplace. Specifically, the proposed laws state that patients and caregivers “shall not be subject to arrest, prosecution, or penalty in any manner or denied any right or privilege, including without limitation a civil penalty or disciplinary action by a business, occupational, or professional licensing board for the medical use of marijuana.” The initiatives would create a rebuttable presumption of lawful activity for individuals who are lawfully issued a registry identification card by the state. The initiatives include an anti-discrimination clause which states that “an employer shall not discriminate against an individual in hiring, termination, or any term or condition of employment, or otherwise penalize an individual, based upon the individual’s past or present status” as a medical marijuana patient or caregiver.

Under the proposed legislation, employers would not be required to accommodate the ingestion, possession, smoking, or other use of marijuana by an employee, customer, or member of the public in the workplace. However, it appears that an employer seeking to take adverse action against an employee on the basis of medical marijuana usage would be required to prove that the employee either used marijuana on the job or showed up to work “under the influence.” Notably, neither ballot initiative defines “under the influence” or lists observable signs or symptoms of impairment. Both initiatives state that they do not require government medical assistance programs or private health insurers to reimburse patients for costs associated with medical marijuana. Employees would be able to access medical marijuana with a state issued registration card and a physician’s certification. The physician’s certification must identify the employee’s qualifying medical condition and state that the employee may benefit from using marijuana. The ballot initiatives enumerate qualifying medical conditions, which include but are not limited to chronic, persistent back spasms and intractable pain.

Further complicating matters is the fact that while the Department of Justice has allowed states to legalize marijuana for medicinal and recreational use, marijuana remains an illegal drug under federal law. Thus, federal grant recipients and contractors must still adopt a zero-tolerance policy for drug use and certify that the workplace is drug-free. Moreover, for employers in safety-sensitive transportation industries, the Department of Transportation has made it clear that a state-issued marijuana license is not a valid medical explanation for a positive drug test result. For all other employers, it is unclear, given the anti-discrimination clause, whether a zero-tolerance drug policy for marijuana will be legal.

Employers should also be aware that testing positive for marijuana under some drug tests, such as urinalysis, does not necessarily prove that the employee was “under the influence.” Metabolites of marijuana may remain in the user’s system for weeks after use, well after the effects of impairment have worn off. This is important because, under the Arkansas initiatives, an employer would likely be required to prove that an employee either used marijuana on the job or showed up to work “under the influence” before taking adverse action against the employee on the basis of medical marijuana usage. A positive marijuana drug test without additional proof of impairment will likely be insufficient to prove that an employee was “under the influence.”

If either Arkansas ballot initiative becomes law, employers will have to grapple with several other difficult issues. How will employers prove that an employee is “under the influence”? Will employees be able to bring wrongful termination claims under the initiative’s broad civil protections and non-discrimination clause? It is highly likely that they will. Will a positive marijuana drug test result be sufficient to disqualify an employee from receiving unemployment benefits or workers’ compensation benefits? Will employers be required to pay for medical marijuana treatments as part of workers’ compensation? Courts in other jurisdictions with medical marijuana laws have addressed these concerns, and while most have ruled in favor of employers, the Arkansas initiatives create relatively robust protections for employees. Consequently, there is no way to accurately predict how Arkansas courts will choose to interpret the language of the initiatives.

Despite the uncertainty surrounding these issues, proactive employers can take steps to ensure that they do not run afoul of a state’s marijuana laws while maintaining a safe, productive workplace. Employers should keep abreast of developments in the laws governing these issues, including laws on drug testing. If appropriate, employers can adopt a drug safety policy with a third-party drug testing lab. Employers should update job descriptions and adopt a fitness-for-duty policy to reflect the essential job functions of each position and include language requiring employees in safety-sensitive positions to have the ability to work in a constant state of alertness and in a safe manner. Employers may adopt an ADA compliant handbook policy on reasonable accommodations. Finally, employers should train supervisors to spot and document objective, observable symptoms of potential marijuana impairment. Whatever steps an employer chooses to take, it is imperative that employers make their position of marijuana clear to employees. The laws on medical marijuana in the workplace are constantly evolving, but courts in states that have had to address these types of issues tend to favor employers who are aware of the law and make a good faith effort to comply with it.

October 2016

Jennifer S. P. Chang
J. Bruce Cross
Cross, Gunter, Witherspoon & Galchus, P.C.
Little Rock, Arkansas

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