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Update: State Chamber Behind Bill to Clarify Workplace Terms of Marijuana Law

4 min read

A bill backed by the Arkansas State Chamber of Commerce to amend the state’s new medical marijuana law was filed Monday by state Rep. Carlton Wing, R-North Little Rock.

The bill, written with Cross Gunter Witherspoon & Galchus of Little Rock, aims to provide more protection to employers and define certain terms and phrases contained in the amendment, which voters approved in November.

“This bill is — simply put — it’s a workplace safety act,” Wing told Arkansas Business on Thursday. “Every employee has a right to expect a safe working environment … This bill helps protect and ensure that.”

But David Couch, the lawyer who spearheaded the medical pot campaign, says it does much more than that.

“It basically prohibits — you’d have to choose between having a job and a marijuana card … The chamber wrote this; they lost the election,” he said. “And this is just a backdoor attempt to shut down the medical marijuana bill.”

This bill would restrict too many people who are qualified to use medical marijuana from using it, he said, and that makes it unconstitutional.

The bill is one of many the Legislature is considering that deal with the nascent marijuana law. Legislators have filed other proposals to delay the law’s implementation, limit how a person can ingest the drug and allow municipalities to prohibit dispensaries and cultivation facilities. On Wednesday, Rep. Douglas House, R-North Little Rock, said he would introduce a bill prohibiting advertising of the drug in Arkansas.

The workplace bill, HB1460, defines “employer,” “employee,” “safety-sensitive position” and “under the influence,” according to attorney Bruce Cross and Jennifer Chang, an associate with Cross Gunter. It will require supermajority approval in both houses of the Legislature.

Cross and Chang said the bill would protect employers from lawsuits if they:

  • Take action against an employee under their own substance abuse or drug-free workplace policy that may include a drug testing program and complies with state or federal law;
  • Act on a “good faith belief” that a qualifying patient was under the influence, possessed or used the drug at the workplace or while working; or
  • Act to exclude a qualifying patient from performing a “safety-sensitive position” based on their good faith belief that individual is currently using marijuana.

Proponents of the bill say it also protects employers from lawsuits if they assess, supervise or control job performance; reassign an employee to another position; place an employee on paid or unpaid leave; or terminate an employee in any of those circumstances.

Couch said the bill’s definition of “good faith belief” is too broad because it could be based on things such as a government record (like the card that will identify medical marijuana users), a bottle or warning label being in the employee’s possession or information from a dispensary, such as employee walking into one.

He said the basis for “good faith belief” could be narrowed and paired with a drug test that shows the concentration of marijuana in an employee’s system. If the concentration is over a set limit, it would be presumed that the employee is “under the influence” unless the employee’s doctor says otherwise.  

Proponents say the bill tackles what employers saw as a key conflict: while the marijuana law prohibits discrimination against employees authorized to receive medical marijuana, it also states that employees may not take drugs or possess them at their workplace, or be “under the influence” while on the job.

Chang said that giving clear definition to the phrase “safety-sensitive position” — and other terms — gives employers more legal justification to ensure employees aren’t impaired and don’t compromise their safety or the safety of others.

Couch said the bill’s definition of “safety-sensitive position” is also too broad, including anyone who works with food, for example. He said it effectively disqualifies a lot of people from the protection the marijuana law offers from discrimination. 

Couch also said he’d like to see medical marijuana treated like any other medication. If someone comes to work high on pills, then the employer has the right to fire that person. The same goes for marijuana, he said. 

Wing told Arkansas Business this bill does that. It does not penalize employees for being cardholders, he said. According to Wing, an employee would only be penalized if he or she comes to work impaired and jeopardizes the safety of fellow employees.

He also said, “[The bill is] very realistically put together. We tried to think of everything to make sure that we captured the will and intent of the voters and what they voted in in the last election — at the same time taking in the will of the voters and expectations that we have of safe working environments across our state.”

“I am not in the camp of those who feel we should deny the people their will in this matter,” Wing added. “The November vote was taken and Issue 6 won.  We are doing the best we can to implement the will of the people.  We have good leadership which is doing just that.”

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