Where Medical Marijuana Collides With Worker Safety

David Couch, the author of Arkansas’ voter-approved medical marijuana amendment, says legal cannabis use does not grant permission for all kinds of employee behavior.
David Couch, the author of Arkansas’ voter-approved medical marijuana amendment, says legal cannabis use does not grant permission for all kinds of employee behavior. (Jason Burt)

Two conflicting trends are hitting the United States: a continuing shortage of qualified or willing candidates for truck driving jobs, and the increasing state-level legalization of medical or recreational marijuana.

The two trends certainly don’t mix. David Couch, the Little Rock attorney who wrote the medical marijuana amendment voters approved in 2016, doesn’t want marijuana users driving big rigs any more than the most anti-pot politician does.

And, since truck drivers cross state lines, they fall under federal regulations, which prohibit marijuana use.

J.B. Hunt Transport Services Inc. of Lowell is one of the kingpins of Arkansas industry and a power player in the transportation world. At a recent industry conference, a company executive said the advance of legalized medical and recreational marijuana could dry up the driver pool even more.

J.B. Hunt uses hair-follicle testing for drugs, a method that is much better than a urine test for detecting chronic drug use. Users of any drug can perhaps achieve a negative urine test by refraining for a period of time, but hair testing detects long-term use.

Brad Hicks, executive vice president of dedicated contract services, said many would-be drivers don’t even apply at J.B. Hunt because of hair testing. He addressed the topic at the Cowen & Co. Global Transportation Conference on Sept. 6 in Boston.

“I think it will continue to further reduce the applicant pool of would-be drivers,” Hicks said, referring to legalized medical marijuana. “We have not seen that in our data in terms of more failed positive tests, but I think it is because everyone knows we have done [hair testing] for so long they don’t apply.

“The people who perhaps are users understand who doesn’t test that way, and they might seek those out. It will be a continuing impact point to transportation and truck drivers as we continue to move forward and, as more states begin to legalize recreational marijuana, I think it will take more applicants out of the pool.”

A recent study by Quest Diagnostics, the national drug testing lab service, reported that overall drug use in the tested workforce is down in Arkansas. The national rate held steady at 4.2 percent of the workforce, while the state rate dropped from 6 percent in 2016 to 5 percent in 2017. The study measured individual drugs as well.

Marijuana use in the Arkansas workforce has been between 2 and 2.6 percent since 2010; in 2017 the percentage was 2.3 percent.

While working to implement the voters’ approval of medical marijuana, the legislature tried to establish some workplace guidelines for medical marijuana with the passage of Act 539 in March 2017. The act sought to clarify any ambiguities in the voter-approved amendment, said J. Bruce Cross of Cross Gunter Witherspoon & Galchus of Little Rock, which helped draft the law.

Two Job Categories
The act divided state occupations into two categories: safety-sensitive and non-safety-sensitive. Those jobs that fall under the safety-sensitive heading had a broad range of factors similar to those applied to carrying a firearm, having access to confidential materials or handling hazardous substances.

Job applicants or workers in safety-sensitive positions who failed a drug test could be terminated or reassigned, according to their company’s specific workplace policy.

“Employers have a right to make sure the workforce is being maintained in a way that is safe for not only the individuals themselves but for others, and the items being produced are safe for the general public,” Cross said. “[In a] safety-sensitive position, a drug test alone would be sufficient to allow an individual to be terminated on that basis. You have lots of issues. We created the category of safety sensitive that made it clear that individuals who tested positive — even using medical marijuana — they would be subject to whatever the policy called for.”

Cross said he and the other lawyers at his firm consulted with other labor attorneys and the Arkansas State Chamber of Commerce, as well as with state legislators on the exact wording. Even Couch, the author of the medical marijuana amendment, had a chance to peruse the bill.

“I didn’t object to too much of it,” Couch said. “It deals specifically with this issue in Arkansas. They tried their best to handle all possible scenarios.”

The voter-approved medical marijuana amendment forbids companies from discriminating against holders of a medical marijuana card. But Couch, obviously an ardent supporter of making medical marijuana available, said he appreciated the need for restrictions. He said he tried to treat medical marijuana as a prescription drug for the amendment’s purposes.

No Carte Blanche
Act 539, Couch said, resembles a Massachusetts law regarding the drug.

“Massachusetts’ law is more near ours, and they say if you have a medical marijuana card and you’re using and you’re not impaired then they can’t fire you for that reason,” Couch said. “If you come to work and you’re stoned out of your mind, it’s the same thing [on marijuana or a prescription opioid].

“If you’re a police officer, you have one standard. If you’re a maid at a hotel, you have another standard. It’s just common sense.”

Cross said it’s important to dissuade people from the idea that a medical marijuana card grants permission for all jobs and all behavior.

“You can’t discriminate against an individual because they have a card, but that doesn’t mean the card gives you carte blanche to come in and act in a certain way or manner that would lead to health, safety and other kind of risks to the business,” Cross said. “It was a balancing act we had to do with that particular act.

“If you have to be on oxycodone, that doesn’t mean carte blanche, that you’re free to do any job at any time if you’re taking that drug. It’s a prescription and it’s legal, but it doesn’t mean you can do every job and be able to perform it.”

Cross said no one wants to discriminate against a job seeker who has a medical marijuana card, but companies also have a responsibility to maintain a safe workplace.

“To me it’s obviously always going to be a fine line,” Cross said. “Employers are having to decide and look at their jobs and make some decisions with regards to their jobs. Most employers that I know and most of our clients, when they look at these things, are looking at it on a job-by-job basis.

“There are lots of ways people can have their abilities impaired. The reality is you have to draw some lines, and that’s what we tried to do.”