Just because medical marijuana is legal in Arkansas doesn’t mean you can’t be fire you for using it.
Voters spoke loud and clearly at the polls because Issue 6, the Arkansas Medical Marijuana Amendment was approved. Depending on your viewpoint on marijuana being treated like a medical drug similar to traditional prescriptions in the workplace, you might be happy, somewhat concerned, or totally freaking out right now. Don’t panic!
According to Ballotpedia, in November 2016, Arkansas joined 27 other states and Washington, D.C., that legalized or decriminalized medical marijuana. States shaded in red below permit the use of medical marijuana. Gray states do not. The use of cannabis oil or cannabidiol (CBD) for medical purposes has been legalized in fifteen (15) states, which are purple. These states allow for the use of CBD in some circumstances, but not medical marijuana.
Once regulations are in place, patients can get a medical marijuana card in Arkansas for conditions such as Alzheimer’s disease, amyotrophic lateral sclerosis, severe arthritis, cancer, Crohn’s disease, fibromyalgia, glaucoma, hepatitis C, human immunodeficiency virus, acquired immune deficiency syndrome, post-traumatic stress disorder, Tourette’s syndrome, and ulcerative colitis. There are also catchall categories to help patients with chronic or debilitating diseases that produce Wasting Syndrome or cachexia, peripheral neuropathy, intractable pain, severe nausea, seizures as well as severe and persistent muscle spasms. Other medical condition can be submitted to the Arkansas Department of Health for approval.
On a positive note, employers, schools, landlords, police and courts, and licensing boards cannot penalize registered medical marijuana users for using prescribed medical marijuana. Additionally, patients are exempt from laws forbidding marijuana paraphernalia in association with medical use. Although the measure prohibits employers from terminating employees based on medical marijuana use, you might want to take that with a grain of salt. Arkansas has a protected class around medical marijuana use, however what do you think will happen if a worker is under the influence or if marijuana is in his or her system during a drug test?
Pre-Employment Screening and Random Drug Testing
Drug testing for pre-employment, safety-sensitive, or reasonable suspicion on an employee who uses medical marijuana is murky. Right now, the law does not fully address the matter. What if a worker is not under the influence but marijuana triggers a positive result simply because of the THC staying in his or her system? On the other hand, what if it is an applicant has THC in his or her system? Do you see where I’m going with this? Employees and applicants who use medical marijuana could be put in a horrible predicament.
If the choice were yours, would you hire the applicant who legally uses medical marijuana or a nonuser that are both qualified for the position? Now, that depends on the hiring authority’s preference and the employer’s compassion. Although an individual may have a prescription from a doctor, applicants must understand that ultimately employers will make the decision. Whew… Marijuana is such a controversial issue and so many people still have preconceived ideas about it even if it’s used for medicinal purposes.
Case in point, the U.S. Drug Enforcement Administration reaffirmed that marijuana has no acceptable recreational or medicinal purpose, so it remains a Schedule I substance on the Controlled Substances Act. Marijuana is illegal under federal law and the ADA (Americans with Disabilities Act) explicitly does not protect employees who use illegal drugs. Because it’s a complicated issue with other states that legalized marijuana, there probably will be no different here in Arkansas.
If you think this new law requires your employer to accommodate on-site medical use of marijuana, you are wrong! Employers can still bar employees from smoking, ingesting, or consuming medical marijuana at work. Just because an employer cannot fire an employee, who has a prescription to use medical marijuana, does not mean employees should come to work high. Workplace safety should always be a priority.
Don’t forget about Workplace Safety
An employee who operates heavy machinery or works in a safety-sensitive position could be a safety concern. Should employees drive a public bus or fly an airplane if marijuana is still lingering in his or her system? If the worker is somewhat under the influence after taking medical marijuana before coming to work, it’s a safety concern as well. You might as well get ready for the lawsuits!
Employers do not have to accommodate an employee’s request to use medical marijuana in the workplace. Courts have held that a person’s right to use marijuana for certain medical conditions doesn’t extend to a right to have that use accommodated by an employer. Check the case law yourself or consult an attorney. The inconsistency between federal and state laws has led to several employees being canned.
On a final note, everyone including managers, line supervisors, human resources professionals, as well as employees need to understand the new law as far as accommodations are concerned. Supervisors and managers should document indications of impairment such as slowed perception and motor skills, unusual sleepiness, and red eyes in the workplace too.
Okay, Arkansans… It’s all right to celebrate this milestone, but posting pictures (of yourself), on Facebook or elsewhere online, smoking weed is taking things a bit too far.
This could subject you to scrutiny at your place of employment. Seriously, do you really want your employer to suspect you of drug use? If you want to keep your job (or need a job), act like it.
Besides, there’s a difference between medicinal marijuana and recreational marijuana. Arkansas has not legalized marijuana for recreational use. What’s more, you never know when “Big Brother” is watching you. So, please stop acting foolish as if it’s no big deal!
Unlike many medical marijuana laws across the nation, in Arkansas, employers can’t fire employees based on medical marijuana use. Sure, medicinal marijuana is legal in Arkansas, but you’re “a double s” still can be fired for using it!
Let’s put it this way: employees cannot be fired due to their medications, but employees can be fired for being high. Professionals can also be disciplined for abusing medical marijuana, just like any other drug.