It will likely be 2018 before marijuana dispensaries in Arkansas are ready to distribute marijuana to those with medical permits, but now is the time for businesses to revamp their drug policies so they match up with state law.
That was the message given Friday (May 19) by Bruce Cross, director at Cross, Gunter, Witherspoon & Galchus, at the Greater Bentonville Chamber of Commerce Business Matters breakfast.
Cross said when Issue 6 became law in January, Arkansas became one of 16 states allowing marijuana usage for medicinal purposes. Eight additional states that began approving medical marijuana have now approved recreational and conditional use of marijuana. He also expects to see two to three states adopt medical marijuana with each election cycle.
Cross said an amendment (Act 593) was passed by the state legislature earlier this year to provide more clarity on how the law will be applied in the workforce for employers of all sizes. The law provides that 2.5 ounces of marijuana can be obtained by those who secure a permit from a physician or their caretaker through the Department of Health.
People who have one of 12 qualifying medical conditions can get a prescription from a physician. Those conditions are: Alzheimer’s, ALS, arthritis, cancer, Crohn’s disease, fibromyalgia, glaucoma, hepatitis C, HIV/AIDS , post-traumatic stress disorder, Tourette’s, and ulcerative colitis.
Cross said there are other ways people can get the drug if they can prove they have a chronic or debilitating disease that causes neuropathy, persistent muscle spasms, severe nausea or some other pain that doesn’t respond to ordinary treatments for more than six months. Cross said it is up to the Arkansas Department of Health to designate the medical condition as qualifying for a permit.
He said one of the more common ailments that qualifies is chronic back pain, but he said PTSD is a qualifying factor in other states. In Colorado, the marijuana user statistics say 63.8% are men and 36.2% are female. The average age of users is between 42 and 43 years old. The most common ailment they are being treated for is severe pain and muscle spasms.
Cross said medical permits do not have to be kept on file by employers and they are not obligated to ask employees if they have a permit. But if a job candidate tells an employer upfront they have a permit for a qualifying condition, employers need to be aware of the law.
Act 593 spells out who is considered an employer that must adhere to the state law, which prohibits discrimination based on having a medical permit. Those with fewer than nine employees are not subject to the law. He said neither are independent contractors, or those who work for their immediate family. But for everybody else, Cross said, businesses need to revamp their drug policies. He said Act 593 also allows for employers to designate safety sensitive positions that are exempt from the law. For instance, a truck driver who must adhere to U.S. Department of Transportation guidelines could be terminated if they test positive for marijuana, even if they have a permit.
He said other areas that can be safety sensitive include those who work with confidential information, or those who handle machinery such as in manufacturing, or someone who drives a car during the course of their work assignment such as a salesman.
Cross said employers should look for those positions within their businesses that can be designated safety sensitive. He said that would need to spelled out in the employee handbook and shared with employees in those positions. Having the policy is a clear message that the workplace does not allow marijuana usage for certain jobs.
He said for workers who don’t meet the safety sensitive threshold and have a permit, it’s important that employers understand they can’t be terminated merely because they test positive for marijuana usage. He said it will be important for supervisors to look for signs of marijuana intoxication in the workplace and those must be documented to support a firing or other reprimand when the employee produces a permit.
He said the statute of limitations for employees to sue over termination is one year and Act 593 also capped employer liability based on size. For companies between 9 and 15 employees, the limit is $15,000. That increases to $50,000 for employers with up to 100 workers, and it tops out at $300,000 for the largest employers with at least 501 employees.
Employers who are deemed a “drug free workplace” to get the worker’s compensation discount or some other federal program also are exempt from prosecution on workplace discrimination claims.
Cross also suggests employers use a medical review board to conduct their drug testing and consider adopting a fitness-for duty-policy. Most importantly, Cross said, employers need to know their stance on medical marijuana use because it can impact their business.