In November 2016, Arkansas voted to legalize medical marijuana. The final law, which amended Arkansas’ constitution and is known as the Arkansas Medical Marijuana Amendment of 2016, makes it illegal for employers to discriminate in hiring, termination, or any term or condition of employment, or otherwise penalize an applicant or employee based upon his or her past or present status as a qualified medical marijuana user. However, employers are not required “to accommodate the ingestion of marijuana in a workplace or an employee while working under the influence of marijuana.”

Last month, the Arkansas legislature took steps to clarify the above portion of the original amendment and enacted a new law to add certain protections for employers, which take effect on July 31, 2017. Next month’s changes clarify that the anti-discrimination provisions of the original medical marijuana law do not prohibit employers from any of the following actions:

• establishing and implementing a substance abuse program that complies with state or federal law (which may include a drug-free workplace policy and drug or alcohol testing) and taking action regarding an applicant or employee under that policy;
• acting on the employer’s good faith belief that a qualifying medical marijuana patient used or possessed marijuana or was under the influence of marijuana while on the employer’s premises or during the hours of employment; or
• acting to exclude a qualifying medical marijuana patient from being employed in or performing a safety sensitive position based upon the employer’s good faith belief that the individual was engaged in the current use of marijuana. Safety sensitive positions must be designated as such by the employer (in writing) and include those positions which require carrying a firearm, performing life-threatening procedures, working with confidential information or documents pertaining to criminal investigations, or working with hazardous or flammable materials, controlled substances, food, or medicine, or those positions in which a lapse of attention could result in illness, injury, or death, such as jobs that include operating, repairing, maintaining, or monitoring heavy equipment, machinery, aircraft, motorized watercraft, or motor vehicles as part of their duties.

In other words, an employer can always act when an employee or applicant possesses, uses, or is under the influence of marijuana on work premises or during work hours. So that part hasn’t changed much. However, an employer can seemingly only take action based on current out-of-work marijuana use if the employee is in a safety sensitive position or the employer is acting pursuant to an established drug-free workplace and testing program. The extent of permissible testing under such a program is not discussed by the Arkansas law, so employers in that state should be cautious about the circumstances under which they drug test employees and applicants. Additionally, employers should revisit written job descriptions to explicitly clarify whether jobs are considered safety sensitive positions and make sure they are specifying hours of employment for each position whenever possible.

By Rebecca D. Bullard, rbullard@dsda.com