How will the amendment to the Medical Marijuana Amendment affect employers?
In the recently concluded General Assembly, the legislature passed Act 593 to amend the Arkansas Medical Marijuana Amendment. The purpose of the Act was to provide clarification to several terms and concepts left undefined in the Amendment itself related to the employment context. Here are five key takeaways from the Act:
1. You should review your drug testing and substance abuse policy. The Act has several provisions that allow employers additional discretion presuming they are acting pursuant to a legitimate, nondiscriminatory drug testing policy or substance abuse policy. I would add that your organization needs to give some thought on what their philosophy will be regarding employees who have registry identification cards and legally use medical marijuana.
2. Keep an eye out on the news for timelines. The Act will likely go into effect July 31, 2017. The Department of Health has not begun issuing registry identification cards yet, and we do not anticipate the first cards being issued until the summer. You need to keep a close eye on the timeline of when cards start being issued and the precise effective date of the Act, which will be confirmed in an Attorney General’s opinion.
3. Do not ask employees or applicants if they have or intend to get a card. While the intent of this question may be good, it is not advisable to ask this question as 1) it is likely unnecessary to know barring unique circumstances; 2) it could be used as evidence of discrimination; and 3) it could be considered a disability related inquiry under the Americans with Disabilities Act. On the other hand, you may want to consider a pre-disclosure policy in conjunction with your substance policy that is worded the same way as such a policy would be for prescription drugs.
4. Begin to evaluate and identify “safety sensitive positions” as that term is used in the Act. While safety is important in every job, not every job will meet the criteria to be “safety sensitive” under Act 593. Your job descriptions should be clear if the position is “safety sensitive,” and your policies should cover the requirements for those positions.” This is important as the Act gives employers specific rights for these positions as it relates to employee medical marijuana use.
5. Be prepared for your plan of action if you have an employee test positive for marijuana on a random drug test but not show any outward signs of impairment and presents a registry identification card. Also, be prepared if an applicant who has not shown any signs of impairment tests positive for marijuana on a pre-employment screen and presents a registry identification card. There are risks associated with any course of action you take. Having a thought-out plan ahead of time will help you understand and mitigate those risks as well as promote consistent application of your policies.
Bonus: Talk to your medical review officer (MRO) about this issue to get a better understanding of how they read the tests results, what will be reported to you, and what responsibilities you might have after receiving the results. If you do not utilize a third-party MRO for drug testing, I would advise that you do so.
This news alert is created by the attorneys in Labor & Employment Practice Group at Friday, Eldredge & Clark, LLP. The information provided is not a substitute for legal advice and should be considered for general guidance only. Please contact one of our attorneys for specific legal advice regarding this matter.
H. Wayne Young is a partner with the firm and a member of the Labor and Employment Law Practice Group. He has been named in the Best Lawyers in America publication annually since 2015, and has been listed as a Rising Star in the Mid-South by Super Lawyers magazine annually since 2013. He is the human resources community liaison for the Board of Directors of Women and Children First and he is the Vice President of the Little Rock Downtown Kiwanis Club. Wayne currently serves as General Counsel to the Arkansas State Council of the Society of Human Resource Management.