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Bill to Amend the Arkansas Medical Marijuana Amendment Passes

A bill clarifying the employment provisions of the Arkansas Medical Marijuana Amendment (AMMA) has passed both houses of the Arkansas Legislature, and is awaiting the Governor’s signature. The bill provides guidance to Arkansas employers seeking to comply with the AMMA while simultaneously fulfilling their duty to provide a safe workplace for employees and the public.

The bill was primarily drafted by CGWG, who submitted it to the Arkansas State Chamber of Commerce, and received input from Chamber members. Representatives Carlton Wing and Douglas House filed the bill. Senators Missy Irvin and Greg Standridge supported the bill in the Senate.

When the AMMA was passed last fall, it appeared to create more questions than answers. The AMMA specifically prohibits Arkansas employees from ingesting marijuana or coming to work “under the influence” of marijuana. Yet the amendment failed to address key issues for employer compliance, such as defining “employer,” “employee,” or “under the influence.”

The bill defines an “employer” as an entity that employs nine or more employees in the State of Arkansas for 20 or more calendar weeks in the current or preceding calendar year. The bill defines “employee” to exclude independent contractors, individuals employed by their immediate family, and individuals in specialized employment training programs. These definitions mirror those contained in the Arkansas Civil Rights Act.

The bill defines “under the influence” to mean symptoms of an employee’s “current use” that may negatively impact the employee’s performance of his or her job duties or constitute a threat to health or safety. The bill includes examples of these symptoms, such as observable physical signs and symptoms, negligence or carelessness, disregard for safety, or involvement in an accident that results in property damage, personal injury, or disruption of a production or manufacturing process.

The bill provides safe harbors to employers who are covered by the AMMA. The bill protects employers acting on a “good faith belief” that an employee ingested marijuana or was under the influence of marijuana in the workplace. An employer’s “good faith belief” may be based on a variety of factors, including the employee’s conduct or appearance, marijuana labels, and other reasonably reliable sources of information.

The bill provides a different standard for employees in safety-sensitive positions. The bill defines “safety sensitive position” to include any position designated as a safety sensitive function by state or federal law, as well as positions that an employer designates in writing as safety sensitive if an employee performing the position while under the influence of marijuana may constitute a threat to health or safety. The bill includes a non-exhaustive list of safety sensitive positions. Because of the heightened threat of danger inherent in these positions, the bill protects employers who exclude an employee from performing a “safety sensitive position” based on a good faith belief that the employee was engaged in the current use of marijuana. Finally, the bill clarifies that employers may continue to establish and implement a drug-free workplace policy that complies with state or federal law.

If the bill is signed into law, it will amend the Arkansas Medical Marijuana Amendment. Arkansas employers should be prepared to review job descriptions and substance abuse policies to ensure that they comply with the newly revised Arkansas Medical Marijuana Amendment.