By Wayne Young
The November 2016 election is now about a year and a half in the past. In that election, Arkansas voters approved Amendment 98 to the Arkansas Constitution that permitted use of medical marijuana in certain instances. We still do not have the drug legally available for purchase by qualified patients and designated caregivers, however. 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.
1. The recent Arkansas Supreme Court decision cleared the way for the 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. We would advise keeping abreast of the developments from the Marijuana Commission as to when the drug will be available for legal purchase.
Employer takeaway: 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.
2. No one has an actual registry identification card from the Arkansas Department of Health as of today.
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 cards in Arkansas in circulation as of today, 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 approved a few thousand applications for cards, but this is the statement on their website: “Note: Registry ID cards will not be available for printing until one month prior to Medical Marijuana availability in Arkansas dispensaries.”
Employer takeaway: Be aware when registry identification cards will actually issue in Arkansas.
3. Arkansas Workers’ Compensation Commission Rule 36 has not changed.
If you are a Rule 36 employer, the Rule requires the employer to 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.
Employer takeaway: If you are a Rule 36 employer or intend to apply to be a Rule 36 employer, continue to monitor action at the commission to make sure your policy is in compliance.
4. 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 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.
Employer takeaway: 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.
5. Another common theme in the early reported decisions in other states on this topic is state disability law accommodation claims.
Like in the federal American’s 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. One accommodation discussed is if the employee is willing to consider alternative treatments to the condition that would not run afoul of the employer’s drug policy. Another such accommodation is an exception to the drug policy that would allow the employee to use the drug during non-working hours so long as they were not impaired at work, which is akin to a typical accommodation for a prescription drug. Arkansas’ body of law on disability discrimination under the Arkansas Civil Rights Act is not developed enough to predict how our courts would rule on such a claim.
Employer takeaway: Be aware of disability discrimination and accommodation claims when dealing with employees and applicants who have a registry identification card.
We continue to monitor the legal developments in Arkansas and around the country in this new area of employment law. If we can provide any assistance in your compliance efforts, do not hesitate to give us a call. We would appreciate the opportunity to help.
The information provided above is created by Attorney Wayne Young of Friday, Eldredge & Clark, LLP. Wayne is a partner with the firm and a member of the Labor and Employment Law Practice Group. He was named the 2017 Russell Gunter Legislative Advocacy Award Recipient by the Arkansas SHRM. The award recognizes outstanding contributions of time and effort in local, state or federal legislative advocacy on behalf of the Human Resources profession.
This is not a substitute for legal advice and should be considered for general guidance only. For more information or if you have further questions, please contact one of our Labor and Employment Attorneys.