Marijuana in the Workplace (Carolyn Witherspoon Commentary)

by Carolyn Witherspoon  on Monday, Mar. 11, 2019 12:00 am   3 min read

There are over 420 songs and over 120 movies about or featuring marijuana. Eleven former United States presidents have smoked marijuana. Canada declared marijuana legal nationwide. Coca-Cola is considering a move into cannabis-infused beverages. Lagunitas, a craft beer label of the brewing giant Heineken, already has a drink infused with tetrahydrocannabinol, better known as THC, the ingredient that produces the marijuana “high.”

There’s more. Ten states plus the District of Columbia have legalized recreational marijuana. Thirty-two states plus the District of Columbia have legalized the use of marijuana for medical purposes. Weed rules the world, or so it seems, as cannabis companies are even buying entire towns to create tourist destinations.

The widespread legalization of marijuana is a reality that employers must face. In Arkansas, employers will be facing this reality soon, as it appears medical marijuana will begin dispensing in April.

Ready or not, marijuana will be entering the workplace this year.

An employer should treat the recreational use of marijuana as it treats recreational alcohol use, meaning employees can be terminated for recreational use if such is a violation of the employer’s policy.

The question remains, however, re-garding what medical marijuana means for the workplace or drug testing policies. As President Clinton famously testified, “It depends upon what the meaning of the word ‘is’ is” — in other words, answering the question is not as easy as employers would hope and will depend on the medical marijuana legislation, the company’s substance abuse policy and the company’s attitude about the same.

Get The List
Licensed Marijuana Cultivators in Arkansas, with investors ranked by ownership stake.

Most individuals certified to use medical marijuana will be so certified because they suffer from a condition that may also be a disability. Under the Americans with Disabilities Act, “qualified individuals with a disability” are protected from discrimination and are entitled to reasonable accommodation. However, a person who is “currently engaging” in the illegal use of drugs is not a “qualified individual with a disability.”

As the ADA is a federal law, and marijuana is still illegal under federal law, the ADA would not serve to protect the marijuana use. However, employers should note that Arkansas affords protections to registered medical marijuana users, protections that would appear to require employers to engage in an interactive process, practically identical to that required under the ADA. This means that an employee in Arkansas with a medical marijuana card cannot be fired — or not hired — on that basis alone.

Employers should also be aware that testing positive for marijuana does not necessarily prove the employee was high when tested. Marijuana may remain in the user’s system for weeks after use. This is important because, under Arkansas law, an employer would likely be required to prove that an employee either used marijuana on the job or showed up to work high before disciplining an employee for medical marijuana use. A positive marijuana drug test, without additional proof of impairment, will likely be insufficient to prove that an employee was impaired.

It is important to note that employers do not have to tolerate on-the-job intoxication even if a worker is using marijuana for medical reasons.

Despite the uncertainty surrounding these issues, employers can take steps to ensure that they do not run afoul of the marijuana law in Arkansas while also maintaining a safe, productive workplace. Arkansas employers must update or create written job descriptions and should adopt a fitness-for-duty policy to reflect the essential job functions of each position and include language requiring employees in safety-sensitive positions to have the ability to work in a constant state of alertness and in a safe manner.

Further, employers can train supervisors to spot and document objective, observable symptoms of potential marijuana impairment. Whatever steps an employer chooses to take, it is imperative that employers make their position on marijuana clear to employees.


Carolyn Witherspoon is with the Little Rock law firm Cross Gunter Witherspoon & Galchus of Little Rock. She represents public and private employers in defending employment-related matters, including Title VII litigation, and does extensive training for employers. Email her at CSpoon@CGWG.com.

 

 

Please read our comments policy before commenting.