Medical marijuana and the workplace

Medical marijuana will impact workplaces in Arkansas, and many employers are rightfully concerned about the implications. Although Amendment 98 was approved in November 2016, the drug is still not legally available for purchase by qualified patients and designated caregivers.

In the meantime, there have been some developments that employers should keep in mind as we get closer to medical marijuana being available in Arkansas.

• The recent Arkansas Supreme Court decision cleared the way for the state Medical Marijuana Commission to issue licenses to the cultivators who are allowed to grow and produce the drug.

This licensing process and the corresponding legal proceeding was one of the reasons the program has not started. The commission will also have to license dispensaries, which are the entities permitted to sell the drug. That process could likewise take time to complete. This time period should also be used to evaluate, draft and educate staff on whatever policies are appropriate to deal with employee use of medical marijuana.

• No one has an actual registry identification card from the Arkansas Department of Health as of present. We have had calls from clients that employees claim to have a “card” or claim their doctor has “prescribed” them medical marijuana. There are no Arkansas cards in circulation yet, and the process does not call for or allow doctors to prescribe medical marijuana. The role of the doctor is to certify the patient has a qualifying medication condition, and the Department of Health then considers the patient’s application along with the doctor’s certification. The department has stated: “Registry ID cards will not be available for printing until one month prior to medical marijuana availability in Arkansas dispensaries.”

• Arkansas Workers’ Compensation Commission Rule 36 has not changed. Rule 36 employers have a policy that prohibits employees from reporting to work with the presence of illegal drugs in their body. These terms are defined to include marijuana as an illegal drug, and the term “presence” of illegal drugs is defined to be the thresholds established by the federal department of transportation for a failed drug screen.

The No. 1 litigated issue in other states regarding medical marijuana when it comes to employment matters is pre-employment drug screens. The typical fact pattern in cases from other states with medical marijuana is an employer extends a conditional job offer to an applicant; the applicant either fails the pre-employment screen due to marijuana or discloses they will fail the screen; and the employer rescinds the offer.

In some of these cases, the employee has stated they use the drug only in the evenings or at bedtime, they do not use the drug before or at work, and they were not impaired in any way during the job application process. The reported decisions so far have largely allowed these cases to at least proceed past a pre-trial motion. The results would not necessarily be the same in Arkansas.

However, as the employment law provisions of Amendment 98 are unique. Employers should be prepared how you intend to handle pre-employment drug screening if an applicant has a registry identification card. Discuss your plan with your medical review officer.

• Another common theme in the early reported decisions in other states on this topic is state disability law accommodation claims.

Like in the federal Americans with Disabilities Act, Arkansas and most every other state has a state law claim that protects individuals from discrimination on account of their disability. Other courts are noting that disclosure by an employee or applicant that they use medical marijuana is the equivalent of disclosure of a disability.

This disclosure triggers a duty on the employer to consider possible accommodations under most disability discrimination laws. Employers should be aware of disability discrimination and accommodation claims when dealing with employees and applicants who have a registry identification card.
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Editor’s note: Wayne Young is a partner in the labor and employment practice group of Friday, Eldredge & Clark. The opinions expressed are those of the author.