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In the Workplace 2019: Where Things Stand with Medical Marijuana

4 min read

(Editor’s Note: This is the last in a series articles by the labor and employment team at the law firm of Wright Lindsey Jennings of Little Rock examining key trends for employers and the workplace in 2019.)

When Arkansas voters passed the Arkansas Medical Marijuana Amendment way back in November 2016, businesses were not quite sure how to deal with the issue. Many ask questions including a) would all Arkansas businesses with employees be covered, b) what rights and protections would employees and businesses have, and c) when would medical marijuana be available?  

The passage of Act 593 by the General Assembly in 2017 provided answers to the first two questions. The remaining question – when will medical marijuana be available – still is up in the air for a variety of reasons, but many expect medical marijuana will be available in state-sanctioned dispensaries sometime in the first or second quarter of 2019. 

Previously: A look at employers’ rights and obligations regarding medical marijuana.

The Big Question

When Arkansas voters approved the Medical Marijuana Amendment in November 2016, many thought medical marijuana would be available to Arkansans by the end of 2017. As the complexity of the process became apparent, that date was pushed back multiple times. Two big parts of the process have been the selection of the cultivation facilities and the selection of the dispensaries. 

The selection of the cultivation facilities drew a lot of attention in early 2018, including some legal challenges. Surprisingly, those legal challenges did not delay the process significantly. 

In March, a Pulaski County Circuit Court Judge concluded that the Medical Marijuana Commission’s licensing process and decisions relating to cultivation facility licenses “violated Amendment 98 to the Arkansas Constitution . . . violated due process of law, resulted from improper procedure, and were arbitrary and capricious.” The Arkansas Supreme Court reversed that decision, basically finding that the plaintiffs jumped the gun by filing their complaint too early. (See Arkansas Department of Finance and Administration, et al., v. Naturalis Health, LLC, et al., No. CV-18-356 (June 21, 2018).) 

The most interesting part of the Supreme Court’s ruling was Chief Justice Kemp’s concurring opinion:

This court will not rewrite administrative-agency rules, nor will it substitute its judgment and discretion for that of the agency. The court may, however, reverse an agency decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are in violation of constitutional provisions or made upon unlawful procedure. See Ark. Code Ann. § 25-15-212(h)(1), (3) (Repl. 2014).

The MMC has a constitutional duty to adopt rules necessary for its “fair, impartial, stringent, and comprehensive administration” of the Arkansas Medical Marijuana Amendment. See Ark. Const. amend. 98, § 8(d)(3). I urge the MMC to review its rules and procedures and to cure any deficiencies.

I’d call that last sentence a warning shot. 

Regardless, the commission decided to forge ahead with its five original picks, and construction of some of the cultivation facilities is well underway. But those cultivation facilities may not be in the clear yet — complaints and protests concerning their selection have been turned over to the Alcohol Beverage Control Enforcement Division for “investigation and, if warranted, adjudication by ABC.” 

So stay tuned — things could get interesting if one or more of the successful cultivation facility applicants are disqualified or sanctioned for a violation of the rules. 

By contrast, the process for the selection of the dispensaries has been relatively smooth. The commission hired an outside consultant to score the 200+ dispensary applications, and the consultant is set to submit its recommendations. While court challenges are always a possibility, we expect the commission will review the recommendations and name the successful dispensary applicants in January. 

By the way, Arkansans won’t see a dispensary on every street corner — each of the eight districts in the state initially will have only four dispensaries, and those districts range in size from four counties (districts in central and northwest Arkansas) to more than a dozen counties. 

Getting Prepared

With all these moving parts, one can wonder whether medical marijuana will ever become a reality. It will, and relatively soon – probably in the first or second quarter of 2019. 

Once medical marijuana becomes available, Arkansas employers will be faced with all sorts of issues, such as how to handle applicants and employees who have been certified for medical marijuana use, whether to allow work-time medical marijuana use in some jobs or none at all, and how to determine if a job should be characterized as “safety-sensitive.” 

Mistakes in handling employee use of medical marijuana will result in lawsuits and the types of damages and costs one sees in typical discrimination litigation. Think through the various scenarios, make sure you understand the various employment laws that could apply, get your medical marijuana policy prepared, and be ready to make a level-headed decision on how to react. 

Stuart Jackson has been practicing in the labor and employment field for over twenty-six years and is a partner on Wright Lindsey Jennings’ Labor & Employment Team. As of late, he has been focused on helping businesses prepare for medical marijuana and defending wage and hour collective/class actions. You can email him at wjackson@wlj.com.
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