Medical Marijuana: Where Things Stand

When the voters of Arkansas passed the Arkansas Medical Marijuana Amendment way back in November 2016, businesses were not quite sure how to deal with the issue. Many questions were being asked, including a) would all Arkansas businesses with employees be covered, and b) what rights and protections would employees and businesses have?

Employer Rights and Obligations Regarding Medical Marijuana

The Arkansas Medical Marijuana Amendment created a new protected category of employees – those with past or present medical marijuana certifications. Discriminating against someone in this new protected class is akin to discriminating against someone on account of race, gender or disability under state law. In early 2017, the General Assembly passed and Governor Hutchinson signed into law Act 593, which modified the Amendment and provided significant protections for employers (now specifically defined as those with 9 or more employees in Arkansas), including:

1. Allowing employers to have and enforce drug-free and substance-abuse testing policies that apply to both applicants and employees;

2. Permitting the discipline of an employee if there is a good faith belief that he or she used or possessed medical marijuana on site or during work hours in violation of an employer’s policy;

3. Permitting the discipline of an employee if there is a good faith belief that he or she was under the influence of medical marijuana on site or during work hours in violation of an employer’s policy; and

4. Allowing an employer to exclude a person (an employee or an applicant) from a safety-sensitive position if there is a good faith belief that a person is a current user of medical marijuana.

But, a word of caution — with the mix of state and federal employment law issues swirling around medical marijuana, businesses need to be very careful how they treat employees with medical marijuana certifications. Two examples — anyone possessing a medical marijuana card may very well have a disability covered by the Americans with Disabilities Act and the Arkansas Civil Rights Act or a serious health condition under the Family and Medical Leave Act..

Knee-jerk personnel decisions based solely on what Act 593 says (or a dislike of medical marijuana in general) will not serve employers well.

The Big Question: When Will Medical Marijuana Be Available?

When Arkansas voters approved the Medical Marijuana Amendment in November 2016, many thought medical marijuana would be available to Arkansans by the end of 2017. As the complexity of the process became apparent, that date was pushed back multiple times.

Two big parts of the process have been the selection of the cultivation facilities and the selection of the dispensaries. The selection of the cultivation facilities drew a lot of attention in early 2018, including some legal challenges. Surprisingly, those legal challenges did not delay the process significantly. By contrast, the process for the selection of the dispensaries has been relatively smooth. The Commission hired an outside consultant to score the 200+ dispensary applications, and the consultant submitted its recommendations in mid-December. The Commission awarded licenses to the winning applicants in January.

You can expect to see medical marijuana dispensaries opening as early as April of this year. But, Arkansans won’t see a dispensary on every street corner – each of the 8 districts in the state initially will have only 4 dispensaries and those districts range in size from 4 counties to over a dozen counties. Fort Smith seems set to have just one dispensary — Fort Cannabis Company.

Getting Prepared

Medical marijuana will become a reality very soon. Once it becomes available, Arkansas employers will be faced with all sorts of issues, such as how to handle applicants and employees who have been certified for medical marijuana use, whether to allow work-time medical marijuana use in some jobs or none at all, and how to determine if a job should be characterized as “safety-sensitive.” Mistakes in handling employee use of medical marijuana will result in lawsuits and the types of damages and costs one sees in typical discrimination litigation. Make sure you understand the various employment laws that could apply, get your medical marijuana policy prepared, and be ready to make level-headed decisions on how to react.

Stuart Jackson
Stuart Jackson

Stuart Jackson has been practicing in the labor and employment field for over twenty-six years and is a partner on Wright Lindsey Jennings’ Labor & Employment Team. As of late, he has been focused on helping businesses prepare for medical marijuana and defending wage and hour collective/class actions. You can contact him at wjackson@wlj.com.