A medical marijuana card holder is suing a northwest Arkansas hospital system for withdrawing a job offer after he tested positive for pot, and he says he’s not alone.
Balance “Lance” Reed of Washington County is seeking class-action status against Northwest Arkansas Hospitals LLC of Springdale, which operates several hospitals including Willow Creek Women’s Hospital and Northwest Medical Center-Bentonville.
Reed said in his lawsuit, filed earlier this month in Washington County Circuit Court, that he believes there are at least 35 and as many as 100 people who were denied a job by Northwest Arkansas Hospitals because of their medical marijuana patient status.
Under the law, employers can decide not to hire a medical marijuana patient for a “safety-sensitive position,” such as being a truck driver or manufacturing explosives.
“So the trucking industry could designate positions as safety-sensitive and then not be forced to hire someone on drugs,” said Reed’s attorney, Chris W. Burks of WH Law of North Little Rock. “The problem is that a lot of employers in Arkansas don’t understand that they have to designate that position as safety-sensitive … on the front end.”
Burks said there are several employers who think that they can fire or not hire an employee who is a medical marijuana card holder if they fail a drug test for pot, Burks said.
“But that’s not correct,” he said. “And the reason you haven’t seen a lot of lawsuits about this is that most of the businesses that make that mistake are smaller.” Burks wants Reed’s complaint to be a “test case” because Northwest Arkansas Hospitals is “a large employer.”
An employer with more than 500 employees, which the defendant has, could face a penalty of up to $300,000 per person per violation of the state Constitution.
“It’s something that I think will continue to be of importance because more people are getting the cards and more businesses are coming into the state,” Burks said. As of last week, there were nearly 77,000 Arkansas card holders.
Northwest Arkansas Hospitals told Arkansas Business last week that it does not comment on pending litigation.
Attorney David Couch of Little Rock, architect of the state’s medical marijuana industry, said he gets more calls on the employment issue than anything else. “The employers in the state of Arkansas are not following the law,” said Couch, who isn’t involved in Reed’s lawsuit.
The General Assembly has declared only a limited number of positions to be safety-sensitive, he said.
“And to discriminate against someone who is using medical marijuana for medical reasons is, in Arkansas, violating that person’s constitutional right, because we amended the Constitution to include the right to use marijuana for medicinal purposes,” Couch said.
J. Bruce Cross, a labor and employment management attorney with Cross Gunter Witherspoon & Galchus of Little Rock, said he advises his clients to clearly identify in writing which positions are safety-sensitive. “What we recommended is to do it in the job description,” he said.
If the job is safety-sensitive, the employer could fire employees who fail a drug test for marijuana or deny them a job even if they have a medical marijuana card, Cross said.
An employee could also be fired if they used medical marijuana at work, even if they had a card.
Reed applied for a mental health tech 1 position at Northwest Hospital-Springdale in February 2020. The position was not listed as safety-sensitive on the application.
He was offered the $11-an-hour job on May 1, 2020, and was set to start at the beginning of June. Reed said he told his new employer that he was a medical marijuana patient and would fail a drug test for use of marijuana, which is what happened.
After Reed tested positive, the hospital said he wasn’t “eligible for hire per policy,” the suit said. “Merely because Defendant has a drug-testing policy and drug-free workplace does not mean Defendant can decline to hire a medical marijuana patient for a non safety-sensitive position because of a positive marijuana test away from work.”
Reed is asking that his case be certified as a class-action and is seeking unspecified damages from Northwest Arkansas Hospitals.