By H. Wayne Young
As dispensaries open their doors across the state, Arkansas employers should have a policy in place for how to deal with medical marijuana in the workplace. One of the questions we have been asked most frequently is what positions qualify as “safety sensitive” under the language of Arkansas’ medical marijuana Amendment (Ark. Const. Amend. XCVIII). While the interpretation of the medical marijuana Amendment has yet to be tested in court, this article addresses our opinion on what positions qualify as “safety sensitive.”
Ark. Const. Amend. XCVIII, §§ 3, 6 states that employers with 9 or more employees (during 20 or more weeks of the current or preceding calendar year) may not discriminate against applicants or employees based on past or present status as a medical marijuana cardholder or as a designated caregiver for a physically disabled medical marijuana patient. While the Amendment generally extends protections for employees who are medical marijuana card-holders, one provision creates a carve-out for “safety sensitive” positions. Specifically, the Amendment states that an employer may exclude medical marijuana cardholders from “being employed in or performing a safety sensitive position based on the employer's good faith belief that the qualifying patient was engaged in the current use of marijuana.” Ark. Const. amend. XCVIII § 3(f)(3)(B)(iii).
Section 2 of the Amendment defines a “safety sensitive position” as one that involves either:
A) “a safety sensitive function pursuant to federal regulations governing drug and alcohol testing adopted by the United States Department of Transportation or any other rules, guidelines, or regulations adopted by any other federal or state agency,” or
B) [A]ny position designated in writing by an employer as a safety sensitive position in which a person performing the position while under the influence of marijuana may constitute a threat to health or safety, including without limitation a position:
(i) That requires any of the following activities:
(a) Carrying a firearm;
(b) Performing life-threatening procedures;
(c) Working with confidential information or documents pertaining to criminal investigations; or
(d) Working with hazardous or flammable materials, controlled substances, food, or medicine; or
(ii) In which a lapse of attention could result in injury, illness, or death, including without limitation a position that includes the operating, repairing, maintaining, or monitoring of heavy equipment, machinery, aircraft, motorized watercraft, or motor vehicles as part of the job duties[.]
For many positions it will be obvious whether they fall into one of these categories. For example, commercial truck drivers who are covered by regulations of the Department of Transportation and the Federal Motor Carrier Safety Administration would fall within subpart (A). Private security guards who are required to carry a firearm as part of their job duties fall within subpart (B). Pharmacists and cooks would likewise be classified as safety sensitive based on their work with medicine and food, respectively.
Other positions may not be as clear. One common question we receive is about proper interpretation of the provision regarding work “with confidential information or documents pertaining to criminal investigations.” The question is whether the phrase should be read to mean “confidential information or documents pertaining to criminal investigations” as two separate activities (1. confidential information; 2. documents pertaining to criminal investigations), or whether “information and documents” both relate to criminal investigations. The first interpretation of two separate activities would include a much wider segment of jobs since many people work with confidential information — for example, human resource professions. Comparatively few positions work with information related to criminal investigations. Ultimately, the courts will have the final say on the interpretation of this provision. We believe the best practice is to interpret the provision narrowly as a single activity. Thus, unless an employee is working with records and/or information related to a criminal investigation, we believe it should not be classified as “safety sensitive” solely on the basis that the employee works with confidential information.
One other issue is that the Amendment does not specify any particular frequency with which an employee may be required to perform safety sensitive activities. For instance, does a job that requires an employee to drive or operate heavy machinery twice a month qualify as safety sensitive? The language is silent. Regardless, the key here is to specify in writing which positions you deem to be safety sensitive. Job descriptions for any positions you deem to be safety sensitive should also reflect the safety sensitive duties and aspects of the job. Taking these steps can help insulate you from a claim that an employee was not actually working in a safety sensitive position.
Deciding whether a position is safety sensitive must be done on a case-by-case basis, and any such determinations should be in writing. If you have questions about whether or which of your employees can be classified as safety sensitive under the medical marijuana Amendment, you should consult with one of our attorneys.
Written by Attorney H. Wayne Young at Friday, Eldredge & Clark. He is a partner in the Labor and Employment Practice Group.
This information 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.