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Medical Marijuana: What Does This Mean to Employers?

The Arkansas Medical Marijuana Amendment (AMMA) legalizes the use of marijuana. The AMMA was approved by Arkansas voters with a 53-47% approval margin. Even though marijuana remains illegal under federal law, more than half of the states allow medicinal and/or recreational use of the drug, with Arkansas being one of the first southern states to legalize it.

The AMMA amends the Arkansas Constitution to allow patients diagnosed with qualifying medical conditions, as well as their designated caretakers, to apply for a state-issued registration card. Registered cardholders may purchase 2.5 oz. of “usable marijuana” from licensed dispensaries within Arkansas. The AMMA lists 12 medical conditions that would qualify, including cancer, Crohn’s Disease and post-traumatic stress disorder, along with chronic, persistent back spasms and intractable pain, and seizures. The AMMA authorizes the Arkansas Department of Health to accept applications to include other qualifying medical conditions.

Many important questions remain as Governor Hutchinson and the Arkansas Legislature work to promulgate rules governing the cultivation, sale, and use of medical marijuana.  State agencies will have up to 180 days from the effective date of the AMMA to promulgate these rules. The State of Arkansas will begin accepting applications for dispensary and cultivation facility licenses on July 1, 2017.

In December 2016, Gov. Hutchinson and legislative leaders appointed the following members to the newly created Arkansas Medical Marijuana Commission: Chairwoman Dr. Ronda Henry-Tillman, M.D.; James Miller; Dr. J. Carlos Roman M.D.; Dr. Stephen J. Carroll, PharmD.; and Travis W. Story, Esq.

What Does This Mean For Employers?

The Arkansas Medical Marijuana Amendment prohibits an employer from discriminating against an individual based upon the individual’s past or present status as a Qualifying Patient or Designated Caregiver. However, the AMMA prohibits individuals from using marijuana in the workplace or coming to work “under the influence.” Thus, employers may take adverse action based on such actions. Less clear is whether an employer can continue to enforce zero-tolerance drug policies that allow for automatic termination when an employee tests positive for marijuana. Further complicating the matter is the prevailing belief in the scientific community that current testing methods do not accurately detect whether an employee is “under the influence” of marijuana.

Now is the time to review your Employee Handbook and/or substance abuse policy to ensure compliance with the AMMA.  For further analysis on this topic, see commentary from CGWG attorneys Jennifer Chang and Bruce Cross available by clicking here.  While reviewing these important issues, know that you can count on your CGWG Labor and Employment Team in this ever changing legislative and political landscape to track current legislation and its effect on your organization and workplace.