Medical Marijuana: A Fact of Life for Arkansas Employers (Stuart Jackson Commentary)

The election is over, and Arkansas is now the latest of many states to have a medical marijuana law on the books.

Although the new amendment to the Arkansas Constitution is effective immediately, it should take some time for the approved use of medical marijuana to begin. At the very least, someone has to design and print the required "Registry Identification Cards" for users — unless one of your employees shows up with a registry identification card from another state and claims to be a "visiting qualifying patient."

So, what does the new law do? It allows (among other things) "qualifying patients" who have "qualifying medical conditions" certain protections in the workplace.

For instance, employers:

1. Cannot "discriminate" against qualifying patients in the 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 qualifying patient;
2. Cannot discipline a qualifying patient for the medical use (which includes actual use or mere possession) of marijuana in accordance with the amendment if he or she possesses not more than 2 1/2 ounces;
3. Cannot discipline a qualifying patient for giving a permitted amount of usable marijuana to another qualifying patient for medical use if nothing is transferred in return; and
4. Cannot discipline anyone for giving a qualified patient marijuana "paraphernalia" to facilitate the use of medical marijuana.

"Qualifying medical conditions" include cancer, glaucoma, HIV/AIDS, severe arthritis, post-traumatic stress disorder (PTSD), hepatitis C, Crohn's disease, fibromyalgia, ulcerative colitis and any "chronic or debilitating disease or medical condition" with symptoms such as peripheral neuropathy, "intractable pain," seizures, "severe" nausea or "severe and persistent" muscle spasms.

The Department of Health also can add to this list, although our guess is that it is not going to jump on that opportunity immediately.

Federal contractors will really have their hands full given the tug-of-war between federal and state law. Federal law still considers marijuana an illegal drug, although there are some legal prescription drugs, like Marinol, that contain THC or other marijuana derivatives.

Even if you are not a federal contractor, Arkansas employers may have differing obligations under the Arkansas Civil Rights Act, which covers disability discrimination, and the federal Americans with Disabilities Act. However, the Department of Transportation's drug and alcohol testing regulations still do not authorize "medical marijuana" under a state law to be a valid medical explanation for a transportation employee's positive drug test result.

There are also implications under Arkansas' workers' compensation laws.

One particular statutory section that defines compensable injuries states, "The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician's orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician's orders."

In other words, the workplace injury is non-compensable. Now, if medical marijuana use by an employee who is injured on the job is not inconsistent with a physician's orders, the previous presumption about the cause of the injury disappears.

Is there any good news for employers? To an extent, yes.

The new amendment does not require an employer to "accommodate the ingestion of marijuana in a workplace" and does not require an employer to allow an employee to work "while under the influence of marijuana."Nor does it require admission of a "guest, client, customer or other visitor" who is "inebriated" as a result of the medical use of marijuana.

Finally, the new amendment does not permit any person to:

1. Undertake any task under the influence of marijuana "when doing so would constitute negligence or professional malpractice;"
2. Possess, smoke or use marijuana in a variety of locations, such as schools, school busses, alcohol or drug treatment facilities, public transportation or any "public place;" or
3. Operate, navigate or control any type of "motor vehicle, aircraft, motorized watercraft, or any other vehicle drawn by power other than muscle power" while under the influence of marijuana.

So, how is this going to play out in the Arkansas workplace?

Let's take an example: assume you have an employee who appears to be under the influence of something. You require the employee to take a drug test, and he or she tests positive for marijuana or THC. What happens next? The law does not require an employer to allow an employee to work under the "influence" of marijuana. Unfortunately, we do not have a specific definition of "under the influence," but hopefully the Department of Health or the General Assembly will define that term for us.

It is interesting to note that the new amendment also talks about a person being "inebriated," and we assume being "inebriated" is a whole lot worse than simply being "under the influence." Regardless, an employer should do what it would normally do with any person appearing to be under the influence — objectively document as best as possible what was observed at the time and be ready to explain why being under the influence of anything (medical marijuana, a prescription drug or an illegal drug) in the employee's specific job is a bad idea.

We suspect the Arkansas Department of Health or the General Assembly will fine-tune this amendment (as they are allowed to do) to help everyone understand their obligations, so stay tuned.

All sorts of questions remain about the provisions of the amendment, some of which seem a bit contradictory.

Attorney Stuart Jackson heads up the Labor & Employment Law team at Wright Lindsey Jennings in Little Rock. You can email him here and see this post on the WLJ website.