Representatives Carlton Wing and Douglas House, along with Senate sponsors Senators Missy Irvin and Greg Standridge, filed House Bill 1460 which impacts the provisions related to employment within the Arkansas Medical Marijuana Amendment.
The bill adds some important clarifying definitions to the Amendment and provides employers with safe harbors to ensure a safe working environment for employees and the public.
With respect to definitions, the bill defines what employers that will be covered by the employment protections of the Amendment to mirror the coverage the Arkansas Civil Rights Act. Specifically, an employer must have nine or more employees for 20 or more calendar weeks in the current or preceding calendar year to be covered. The bill also defines “employee” to exclude independent contractors, employees that work for their immediate family, and certain employees in a specialized training program for sheltered workshops and rehabilitation facilities.
The amendment specifically does not require employers to accommodate employees who ingest marijuana in the workplace or employees who are “under the influence of marijuana.” The bill defines “under the influence.” The bill states this includes symptoms of an employee’s “current use” of marijuana that may negatively impact the performance of the employee’s duties. The factors listed for determining if an employee is under the influence include physical symptoms, negligence or carelessness, disregard for the safety of the employee or others, involvement in an accident that results in damage to property, injury, or disruption of a process, or other symptoms causing a reasonable suspicion that marijuana use is negatively impacting the employee’s work performance or constitutes a threat to health or safety.
With respect to employment protections, the bill clarifies that employers are still free to establish and enforce a substance abuse or drug-free workplace policy that may include a drug testing program that complies with federal and state law. The bill also protects employers who act upon a good faith belief that an employee either ingested marijuana in the workplace or was working while under the influence of marijuana. The bill defines “good faith belief” to include reliance on numerous factors such as the employee’s appearance and conduct, information from another person, video, and other information that would form a suspicion of marijuana usage. The bill protects employers who exclude a qualifying patient from performing a “safety sensitive position” based on a good faith belief the individual was engaged in the current use of marijuana.
The bill clarifies the procedure for a cause of action based on a violation of the Amendment. The remedies are made to match those of the Arkansas Civil Rights Act, and the statute of limitations for such a cause of action is set at one year from the occurrence of the alleged violation.
The bill has other important clarifications, such as that a written certification from a physician that an individual has a qualifying medical condition is not a medical prescription for marijuana.
The bill was referred to the Committee on House Rules and awaits further action.
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.