Arkansas Marijuana Laws & Considerations

Only medical marijuana is legal but on recreational in Arkansas. An employer with a well-written drug free workplace policy can be confident about their drug testing program. Marijuana must be addressed in every policy. There is fine line between a positive drug test for marijuana and impairment. Employers cannot penalize employees who fail a drug test or reject their application for employment based solely on the prescription for medical marijuana.

Medical Marijuana

Recreational Marijuana

Employer Concerns – Significant to Review

Does not require accommodation for employee use of medical marijuana while under the influence or while in the workplace.
(Ark. Med. Marijuana Amend. of 2016 Sec. 3) “An employer shall not discriminate against an applicant or employee in hiring, termination, or any term or condition of employment, or otherwise penalize an applicant or employee, based upon the applicant’s or employee’s past or present status as a qualifying patient or designated caregiver.”
An employer can establish and take actions with an applicant or employee based on a drug-free workplace policy that complies with state or federal law.
Has a significant section of definitions including, for example, current use of marijuana, safety-sensitive, under the influence, good faith belief, positive test result for marijuana, (Ark. Med. Marijuana Amend. of 2016 Section 2(22)), employer, “…an entity who employs nine (9) or more employees in the State of Arkansas in twenty (20) or more calendar weeks in the current or preceding calendar year,” and more. These definitions will be critical as an employer operationalizes protocols regarding employee use of marijuana.

Testing

(Ark. Med. Marijuana Amend. of 2016 Sec. 3) “Establishing and implementing a substance abuse or drug-free workplace policy that may include a drug testing program that complies with state or federal law and taking action with respect to an applicant or employee under the policy.” It is anticipated that SAMHSA-certified testing mirroring DOT is what will qualify for testing as referenced in Ark. Med. Marijuana Amend. of 2016
A positive test result for marijuana cannot be the sole basis for a good faith belief that the employee was under the influence, possessed, smoked, ingested, or otherwise engaged in the use of marijuana while on the premises of the employer or during the hours of employment.

Hiring/Termination

Cannot discriminate based on history with being a medical marijuana patient.
An employer has latitude regarding discipline: paid or unpaid leave, suspend, terminate, require successful completion of a substance abuse program before returning to work or any combination.

Discipline

Does not require accommodation for an employee working under the influence and the employer has latitude to discipline as determined in their drug-free workplace policy as long as that policy complies with state and federal law.

Use/Possession

Persons under 21 are prohibited from smoking as a means of ingesting marijuana.

Other Impacting Laws

(e.g., drug testing, workers’ compensation, unemployment)

There are workers’ compensation and unemployment related voluntary laws with details about drug testing requirements. Although not required, these statutes provide greater latitude to deny workers’ compensation and unemployment claims.
Employers workers’ compensation denial – Rebuttable presumption: There will be no compensability where the injury (Ark. Code Ann. 11-9-102(4)(b)(iv)), “…was substantially ‘occasioned’ by alcohol, illegal, prescription drugs were utilized in contravention of the physician’s orders…” The burden is on the employee to prove substance use per this description did not ‘occasion’ the injury.
Apply the Checklist of Impacting Issues to Research provided by NDS for additional state laws and issues that can relate to and/or impact your operations regarding employee use of marijuana.

Sources

(e.g., Bill Number, Authority)

Sources (e.g., Bill Number, Authority)

Arkansas Medical Marijuana Amendment of 2016 – Medical marijuana
Arkansas Code Ann. 11-14-101 to 112 – Drug testing and workers’ compensation premium discount
Arkansas Admin. Rules 099.36 – Drug testing and workers’ compensation premium discount
Arkansas Code Ann. 11-10-514 – Unemployment related
Arkansas Code Ann. 11-9-102 – Workers’ compensation related

Disclaimer

This resource is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.

Caution

Where there are quotation marks, the language is directly from published law. This information is only a summary of some issues and it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g. workers compensation, unemployment law).

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