A Little Rock attorney gave a presentation at the Fort Smith Regional Chamber of Commerce’s First Friday Breakfast on how the state’s medical marijuana laws affect businesses and how employers can be compliant.
J. Bruce Cross of Cross, Gunter, Witherspoon & Galchus, P.C. said by phone that, as a labor lawyer, he saw medical marijuana in the workplace as something that needed to be addressed.
Act 593 of 2017, which Gov. Asa Hutchinson signed into law in March, clarifies some of the provisions of the Arkansas Medical Marijuana Act that was passed last year by creating definitions for employer, employee, under the influence and safety sensitive position, according to Cross’s presentation. “Under the influence” is defined as symptoms of current use of marijuana that may negatively impact the performance of the job duties or constitute a threat to health or safety. A safety sensitive position is any position involving a safety sensitive function pursuant to federal regulations adopted by the United States Department of Transportation or any other federal or state agency’s rules, guidelines or regulations. A position can also be considered safety sensitive if it is designated in writing by the employer as such because a person performing the position under the influence of marijuana may constitute a threat to health or safety, such as positions that require the employee to carry a firearm or work with hazardous or flammable materials.
Per Act 593, employers may still have substance abuse policies with drug testing programs but cannot take adverse action against a qualifying patient based solely on a positive drug test, according to Cross’s presentation. To take action, an employer must have a good faith belief that the employee was under the influence of marijuana at work. "Good faith belief" is considered observed conduct, behavior or appearance; information reported by a person believed to be reliable; written, electronic or verbal statements; lawful video surveillance; records of government agencies, law enforcement agencies or courts; a warning label, usage standard or other printed material that accompany instructions for usable marijuana; positive drug test result (although a positive drug test alone is not enough to take action against a qualifying patient in a non-safety sensitive position); information from a physician, medical review officer or a dispensary; information from reputable reference sources in print or on the internet; and/or other information reasonably believed to be reliable or accurate.
Cross’s recommendations to employers were to know their companies’ policies, have employee awareness meetings to discuss the impairing effects of marijuana, emphasize the importance of safety in the workplace and in public areas and not to take disciplinary action against an employee for medical marijuana without consulting upper management, human resources and potentially legal counsel.