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.
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.
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.
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.