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State Chamber Drafting Bill to Clarify Marijuana Law for Employers

3 min read

The Arkansas State Chamber of Commerce and Cross Gunter Witherspoon & Galchus of Little Rock said last week that they are working on legislation to clarify elements of the state’s new medical marijuana law.

The groups aim to have a draft of a bill this week. They say their goal is to minimize potential lawsuits by clarifying issues regarding drug testing, worker safety and workers’ compensation. But they said it was too early know which specific issues they would include in a single bill.

“What we don’t want to see happen is everybody ends up in court, and then you can get multiple differing decisions until they wind their way up to the Supreme Court, and everyone in the interim is a mess,” attorney Bruce Cross said.

CGW&G discussed some of the issues the bill might address with legislators last month, Cross said. One of the key conflicts is that the amendment prohibits discrimination against employees authorized to receive medical marijuana. But the amendment also states that employees may not take drugs or be “under the influence” while on the job.

Cross and Jennifer Chang, an associate with the firm, told Arkansas Business the problem is that the amendment doesn’t define the phrase “under the influence.” And the standard test for employers to determine whether someone is under the influence — a urinalysis — would be ineffective, because the results can be positive even if someone used marijuana weeks before the test.

And, Cross, added, “even if you could say, ‘Well, you failed our drug test so you’re out,’ they’re going to come back and say, ‘Well, you did this because I’m a qualified cardholder.'”

Cross said the firm has advised clients to not only test employees but make substantive observations to which they are willing to testify if they find themselves needing to prove employees permitted to use medical marijuana were “under the influence” on the job.

As such, the bill might offer employers the ability to prove impairment with a drug test and another measurement, such as observations or an employee’s verbal admission.

Chang said the bill may also define “safety-sensitive” employees. That would give employers more legal justification to ensure employees aren’t impaired and don’t compromise their safety or the safety of others, she said.

“[Employers] don’t want to take marijuana away from people who really need it,” Chang said. “They’re just, again, concerned about their workforce, people coming to work operating machinery, if they’re nurses, manufacturing…”

Workers’ Comp

Cross and Chang said the bill may also seek to answer questions that could arise when employees, injured on the job, apply for workers’ compensation.

Employees applying for workers’ comp are tested for drug use. If they test positive, they must prove they weren’t under the influence of alcohol or drugs when the accident that injured them occurred. 

But, according to Cross and Chang, the marijuana amendment flips the burden of proof for medical marijuana users who test positive for the drug; it is employers who must prove the employee was under the influence of marijuana at the time of the accident.

There’s also the question of whether employees can use workers’ comp benefits to buy medical marijuana to treat their injuries, Cross said, and whether testing positive for marijuana could disqualify medical marijuana users who have lost their jobs from receiving unemployment benefits.

Cross said their bill might also seek to make sure businesses keep a discount they receive on workers’ comp insurance for testing employees for drugs.

Lines of Communication

Even without legislation, Cross has advice for how employers and employees can navigate the medical marijuana law.

A good model for both to follow, Cross said, is one similar to how employers work with employees taking prescription medications.

Even though they’re not legally required to do so, employees could voluntarily tell their employers if they’re authorized to use medical marijuana. Then, an employer could show a job description to the employee’s doctor to make sure the employee could safely perform job duties while using medical marijuana.

The amendment protects medical marijuana users from being fired for using the drug. But Cross said employers could move an employee to a job they could safely perform or put the employee on temporary leave.

Last week, CGW&G and the chamber held a seminar about the amendment for business leaders. They plan another next month.

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