Marijuana has been approved for both recreational and medicinal use in an ever-growing number of states. Employers in states with medical and recreational marijuana laws can, nonetheless, prohibit the use of marijuana in the workplace. However, in many states, medical marijuana laws include anti-discrimination provisions. The provisions prohibit employers from taking adverse employment actions based on an employee’s status as a legally permitted medical marijuana user. Some states have included anti-discrimination provisions in their recreational marijuana laws.
The University of Arkansas Cooperative Extension Office shared information that Arkansas voters had the opportunity to amend the Arkansas Constitution on Election Day. Arkansas voters could vote to amend four constitutional amendments. One amendment, Issue 4, authorizes the possession, personal use, and consumption of cannabis by adults. It also authorizes the cultivation and sale of cannabis by licensed commercial facilities, and to provide for the regulation of those facilities.
The legalization of recreational marijuana would bring a multitude of changes to the Arkansas workplace. However, a majority of voters, 56.3%, voted against Issue 4. Despite Arkansas voters voting against recreational marijuana laws surrounding medical marijuana continue to perplex Arkansas employers.
Medical Marijuana in Arkansas
Arkansas voters say YES to Initiative 6
In November 2016, Arkansas voters approved the Arkansas Medical Marijuana Amendment of 2016. The amendment legalized the use of medical marijuana by patients with qualifying medical conditions and their designated caregivers who possess written certification from a doctor.
Who in Arkansas qualifies?
Under the Medical Marijuana Rule issued by the state health department, a “qualifying patient” means a person diagnosed by a physician as having a qualifying medical condition and registered with the health department. The Rule lists several “qualifying medical conditions,” including cancer, ulcerative colitis, severe arthritis, and fibromyalgia. It also gives the health department authority to approve other medical conditions as qualifying.
Employers are prohibited from discriminating against an applicant or employee based on the individual’s past or present status as a qualifying patient or designated caregiver. However, employers may establish and implement a drug-free workplace policy. They policy can include a drug testing program that complies with state or federal law and act in accordance with the policy.
An employer may act on its good-faith belief that a qualifying patient:
- Possessed, smoked, ingested, or otherwise engaged in the use of marijuana while on the employer’s premises or during work hours; or
- Was under the influence of marijuana while on the employer’s premises or during work hours, provided that a positive test result for marijuana cannot provide the sole basis for the employer’s good-faith belief.
Employers are also permitted to exclude a qualifying patient from safety-sensitive positions based on the employers’ good-faith belief that the individual was engaged in the current use of marijuana.
The law protects specific employer actions, including:
- Implementing, monitoring, or taking measures to assess, supervise, or control the job performance of an employee;
- Reassigning an employee to a different position or job duties;
- Placing an employee on paid or unpaid leave;
- Suspending or terminating an employee;
- Requiring an employee to complete a substance abuse program before returning to work;
- Refusing to hire an applicant; or
- Any combination of the actions listed above.
Creating a drug-free workplace program
Employers not covered under the Drug-Free Workplace Act (or a state law mandating such a program) have more freedom when creating drug-free workplace programs. There is no one “right” way to implement a drug-free workplace. An employer’s program should be designed to meet the particular needs of its workplace.
In some states, employers that voluntarily establish a drug-free workplace program may become eligible for a premium discount on their workers’ compensation insurance premium. The drug-free workplace program must be in accordance with specific criteria and approved by the appropriate state regulatory agency. Here are of the issues to consider when drafting a workplace plan are listed below:
Educating your staff
An employee education program will be most effective if it does not sound like a “top down” mandate from management. It should involve upper- and lower-level management as well as employees. Supervisors can play a key role in an effective drug-free workplace program. More than anyone else in the organization, supervisors are in the best position to recognize changes in an employee’s behavior or job performance. Remember that supervisors are not expected to provide substance abuse counseling. Additionally, they should not attempt to diagnose alcohol- or drug-related problems.
Supporting your employees
Employee assistance programs (EAPs) are one of the most effective ways to deal with alcohol- and drug-related problems in the workplace. They are usually multifaceted programs designed to assist employees with personal problems that affect their job performance.
Drug and alcohol testing
A drug testing program must be developed with careful thought and planning. The first step is to obtain legal counsel to ensure the company fully complies with all applicable federal and state laws and regulations. Testing is an important way an employer can protect the workplace from the harmful effects of alcohol and other drug abuse. A drug testing program can deter employees from coming to work unfit for duty and more.
The most common reasons employers implement drug testing are to:
- Provide a safe workplace for employees.
- Ensure general public safety and instill consumer confidence that employees are working safely.
- Deter employees from abusing drugs and alcohol.
- Prevent the hiring of individuals who use drugs illegally.
- Provide early identification and referral of employees who have drug or alcohol abuse problems.
Aside from the regulations that cover government contractors and the transportation industry, no comprehensive federal law regulates or prohibits testing by private employers. Private employers have more freedom to conduct drug testing than public employers. Public employers face stricter rules, including constitutional limitations on searches and seizures than private employers.
Some states have state laws that impose testing restrictions. It is imperative that an employer familiarizes itself with the various state and federal regulations that may apply to the organization before designing a drug-testing program.
The number of states approving marijuana for recreational and medicinal use continues to grow. It is detrimental for employers to identify “safety sensitive positions” and have clear descriptions of those jobs, including the hours of employment. The recent focus on marijuana in the workplace provides an opportunity to review and update current policies and practices.
Written By: My HR Professionals
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The University of Arkansas Cooperative Extension Service
Society for Human Resource Management (SHRM)