Medical Marijuana in the Workplace (Part 2): What It Means For Arkansas Employers

  • By Mark Ridgeway
  • 20 Oct, 2017
MEDICAL MARIJUANA IN THE WORKPLACE

In January 2017, Arkansas became one of 29 states that allows marijuana use for medical purposes. The Arkansas Medical Cannabis Act (MCA) was passed in November 2017, but it will likely be Spring of 2018  before marijuana dispensaries in Arkansas are ready to distribute marijuana to those with medical permits.

However, now is the time for Arkansas employers to become familiar with the MCA and adjust their businesses drug policies accordingly.

Arkansas has adopted strong employer protections in their medical marijuana statute and is demonstrating that it is very employer-focused when it comes to cannabis in the workplace.

WHO QUALIFIES FOR A PERMIT?

People who have one of 12 qualifying medical conditions can get a prescription from a physician. Those conditions are: Alzheimer’s, ALS, arthritis, cancer, Crohn’s disease, fibromyalgia, glaucoma, hepatitis C, HIV/AIDS , post-traumatic stress disorder, Tourette’s, and ulcerative colitis.

There are other ways people can get the drug if they can prove they have a chronic or debilitating disease that causes neuropathy, persistent muscle spasms, severe nausea or some other pain that doesn’t respond to ordinary treatments for more than six months. But, it is up to the Arkansas Department of Health to make the determination in these cases.

Medical permits do not have to be kept on file by employers and they are not obligated to ask employees if they have a permit.

EMPLOYER OBLIGATIONS AND RESTRICTIONS

In an effort to clarify the obligations and restrictions on employers, Arkansas recently amended the MCA. Some of the more significant changes include:

 • The MCA now only applies to employers with nine or more employees (employers with 8 or less are not subject to the MCA’s anti-discrimination provisions).

 • The anti-discrimination provisions now apply only to “applicants” and “employees,” not all “individuals.” (independent contractors, or those who work for their immediate family are exempt)

 • An employer now cannot be sued under the MCA in the following circumstances:

 – if he or she is acting in accordance with a drug-free workplace program or policy

– if he or she is acting on a good faith belief the marijuana was possessed or used on the premises of the employer or during hours of employment.

– if her or she is acting on a good faith belief that the employee or applicant was under the influence of marijuana while on the premises of the employer or during hours of employment.

– if excluding or removing an employee or applicant from a “safety sensitive position” based on the employer’s good faith belief that he or she was engaged in the current use of marijuana.

• The MCA has a one year statute of limitations.

 • Damages under the MCA are statutorily capped.

 • Individuals, such as managers or supervisors, cannot be individually sued under the MCA.

THE TAKEAWAY

Employers should update their written policies and implement new practices. Drug testing policies and procedures should also be reviewed and updated and “safety-sensitive” positions should be identified, along with written job descriptions for them.


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The CHC Blog

By Mark Ridgeway 10 Nov, 2017
Conducting background screening and having a practical screening program are not the same thing. Whether you are new to screening or want to move from “screening” to “sensible screening,” it is important to understand four fundamentals of employment screening.  
  1. Not all information is available instantly.  Despite online offerings to the contrary, a quality background check will generally take one to three business days to complete and, in some cases, longer. The U.S. Federal Fair Credit Reporting Act (FCRA)  requires a screening company to “follow reasonable procedures to assure maximum possible accuracy.” This means searches must often be conducted at the source, such as a school, courthouse, state licensing bureau or a previous employer.
  2. National criminal databases are not definitive sources.   Commercial (non-governmental) databases are often advertised as “national,” but this is a misnomer. These databases are developed by purchasing criminal records from numerous sources and using techniques like screen scraping and web harvesting to capture records. These massive databases often contain up to a half billion records. They do not contain all criminal records in the U.S., because some sources will not sell a copy of records or allow records to be captured. Additionally, records within the database may be incomplete or not reflect the current record status
  3. The subject of the background check is part of the process.   Per the FCRA , the subject of the background check must know about and authorize the background check before it is requested from the screening company. The subject has the right to a copy of the report and must have an opportunity to dispute inaccurate information in the report before an employment decision is made.
  4. Employment screening is heavily regulated.   Federal, state and even local law govern the preparation and use of background reports when prepared by a third party, like an employment screening company. These laws and regulations are applicable even if the background report contains only public record information, such as criminal records.
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