Written policies key to manage employees who are medical marijuana patients

With more than 540,000 Arkansans possibly eligible for medical marijuana, Fort Smith Regional Chamber of Commerce members were told Tuesday (April 30) that employers are going to have to learn a new set of rules.

Stuart Jackson, an attorney with Little Rock-based Wright Lindsey Jennings, shed some light on marijuana in the workforce during two information sessions sponsored by the Fort Smith chamber. Dispensaries are preparing to open across the state and more than 10,877 Arkansas residents are approved for an Arkansas medical marijuana ID card as of April 25.

Jackson advises employers on compliance with civil rights laws and developing personnel policies (including medical marijuana policies), employment agreements and covenants not to compete. He also defends employers in federal and state court litigation and appeals involving claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act and the Arkansas Civil Rights Act.

Under Arkansas law, 18 medical conditions qualify for treatment with medical marijuana. Looking at just the top six of those conditions, there are 541,673 Arkansans who could qualify for a medical marijuana card, Jackson said.

“In a state with a population a little over 3 million, that’s one in six people who theoretically could qualify just looking at six of the medical conditions,” he said.

Those numbers mean employers are going to have to learn the law and what they can and cannot do to regulate use among employees. For starters employers cannot discriminate against an individual because they are a “qualifying patient” or “designated caregiver;” discipline a qualifying patient or designated caregiver for the medical use of marijuana if they possess no more than 2.5 ounces; discipline either group for giving marijuana to another qualifying person if nothing of value is transferred in return; discipline a qualifying person for possessing marijuana paraphernalia; or discipline anyone for giving a qualifying person paraphernalia.

Employers are not required to accommodate the ingestion of marijuana in the workplace or an employee working while under the influence of marijuana, Jackson said.

“When it comes to dealing with employees, you need to think of someone with a medical marijuana card as a member of protected class,” Jackson said. “But the legislature gave employers a lot of power, and it is up to you if you allow it on your site.”

Employers are allowed to take action against an employee if there is a good faith belief that the employee possessed or used marijuana on the premises or during work hours or was under the influence at work or during the work hours. Jackson said managers should be trained to spot signs of an employee under the influence and trained to keep documentation, noting that a positive drug test cannot be a sole basis for a good faith belief that someone is under the influence.

Employers also can exclude a qualifying patient from performing safety-sensitive positions based on the employer’s good faith belief that the qualifying patient is engaged in the use of marijuana, Jackson said, noting that having the card is enough for an employer to believe an employee is a user.

Safety-sensitive position include jobs that require carrying a firearm; performing life-threatening procedures; working with hazardous or flammable material, controlled substances, food or medicine; and working with confidential information or documents pertaining to a criminal investigation, among others.

Looking at this list, most jobs in construction would be considered safety-sensitive, Jackson said. But a front-desk clerk at a hotel, even though they are privy to confidential information would not.

Another qualifier is “those jobs in which a lapse of attention could result in injury, illness or death,” Jackson said. This definition puts teachers in a gray area, he added, noting that teachers of young children might qualify as being in a safety-sensitive position, while teachers of older students might not. The key, he said, was for employers to make certain to have clear job descriptions written and for all safety-sensitive positions to be noted in writing.

“The point is don’t go overboard when designating positions as safety sensitive. Don’t lose your common sense,” Jackson said. “Having a position incorrectly designated could lead to severe consequences down the line.”

In the event someone in a safety-sensitive position has a certified card for medical marijuana, employers have options. Employees can be reassigned to a position that is not safety-sensitive. They can put the employee on paid or unpaid leave. They can monitor or assess behavior and performance. Employers also can require successful completion of a substance abuse program or suspend or terminate a person’s employment, but those options are severe and could be risky, Jackson said.

Questions employers need to ask include:
• Will you allow some use or possession of medical marijuana (treating it like a prescription medication) at work or during work hours for employees in non-safety-sensitive jobs?
• Have you designated all safety-sensitive jobs in writing?
• Do you mandate disclosure of medical marijuana use by all applicants for and employees in safety sensitive jobs, and if so, when?
• Do you have any federal contractor concerns in terms of Drug Free Workplace Act or specific federal provisions?
• If you drug test for marijuana, how will your medical review officer report a positive?

“You need to make some decisions. The law allows for you to have some control,” Jackson said. “The key is to have it in writing. Update the employee the handbooks.”