‘Now is the time’ for Arkansas employers to set internal policy on medical marijuana, attorney says

Arkansas employers are running out of prep time before medical marijuana becomes available, so it’s crucial to begin now defining internal policies and procedures, said Little Rock attorney J. Bruce Cross of Cross, Gunter, Witherspoon & Galchus.

In an address to the Fort Smith Regional Chamber of Commerce at the group’s First Friday Breakfast event on Friday (Nov. 3), Cross urged businesses and organizations to get familiar with four terms as they are defined by the recent Act 593 amendment passed earlier this year: employer, employee, “under the influence,” and “safety-sensitive positions.”

For the law’s purpose, employers are defined by the same standards of the Arkansas Civil Rights Act, which means they employ nine or more employees in-state “for 20 or more calendar weeks in the current or proceeding calendar year,” Cross said, adding that employees follow the same ACRA standards and do not include independent contractors, employees who work for their immediate family, individuals participating in a specialized employment training program conducted by a nonprofit sheltered workshop or rehabilitation facility, or individuals employed outside of Arkansas.

UNDER THE INFLUENCE, DEFINED
The trickier territory is in defining “under the influence” and “safety-sensitive positions,” Cross said. The former means symptoms of current use of marijuana that may negatively impact the performance of the job duties or constitute a threat to health or safety. This could include symptoms of the applicant’s or employee’s speech, walking, standing, physical dexterity, agility, and coordination, “or other irrational or unusual behavior inconsistent with the usual conduct of an applicant or employee,” Cross said.

It could also include negligence or carelessness in operating equipment, machinery, or production/manufacturing processes as well as a disregard for safety or involvement in an accident resulting in property damages, disruption to a production or manufacturing process, or injury.

Reasonable suspicious signs and symptoms, as the amendment defines them, might be in the employee’s inability to accurately gauge lengths of time and distance. Cross also advised employers to watch for hearing and vision impairment, visual/auditory hallucinations, inability to cope with sudden changes and/or emergencies, loss of balance, short-term memory loss, and unconcerned attitudes.

Other signs that might help employers make a “good faith” determination of marijuana-induced impairment might include decreased cognitive reasoning and motor coordination; inability to concentrate; and increased drowsiness, fatigue, and lethargy.

Cross warned employers not to move without appropriate documentation, advising that to document signs and symptoms and “have another manager witness and sign. Then, keep it in the employee’s records,” Cross said.

Employers under the law will still be allowed to have drug testing policies, “but to take adverse action against a qualifying patient, an employer must have a good faith belief that the employee was under the influence of marijuana at work, not just a positive drug test.”

According to Cross, good faith belief may be based on the following:
• observed conduct, behavior, or appearance;
• information reported by a person believed to be reliable;
• written, electronic, or verbal statements;
• lawful video surveillance;
• records of government agencies, law enforcement agencies, or courts;
• a warning label, usage standard, or other printed material that accompany instructions for usable marijuana;
• info from a physician, medical review officer, or dispensary; and
• and info from reputable reference sources in print or on the Internet.

A positive drug test result is perhaps the most obvious indicator, Cross said, but it is “not enough to take action for a non-safety sensitive position.” However, it is completely actionable for safety-sensitive positions, and that’s part of why employers should be defining those roles now if they haven’t already.

SAFETY-SENSITIVE POSITIONS, LIABILITIES
Safety-sensitive positions are defined in two ways, Cross said: by state/federal law and as designated in writing by an employer “in which a person performing the position while under the influence of marijuana may constitute a threat to health or safety.”

This could mean an employee authorized to carry a firearm, perform a life-threatening procedure, or work with confidential information or documents pertaining to criminal investigations. It also would apply to individuals working with hazardous or flammable materials, controlled substances, foods, or medicines, or any position in which a lapse of attention could result in injury, illness, or death, “including without limitation a position that includes the operating, repairing, maintaining, or monitoring of heavy equipment, machinery, aircraft, motorized watercraft, or motor vehicles as part of the job.”

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 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.