Cities and counties are seeking guidance on how to amend their drug testing policies to keep in compliance with the new Arkansas Medical Marijuana Amendment.
Holding a medical marijuana card might be a disadvantage to some job seekers who could be turned down for a number of “safety sensitive” jobs if they fail a drug test, even if they report their status beforehand during an interview. Such action by employers would not be a violation under the marijuana amendment, according to several attorneys.
Current city or county employees in “safety sensitive” positions — defined as those “in which a momentary lapse of attention may result in grave and immediate danger to the public” — could have to take leave or switch positions while taking marijuana as medication.
The Arkansas Municipal League and the Association of Arkansas Counties are preparing model policies that cities and counties can adopt or use as reference guides. Both policies are drafts at the moment.
“As you might imagine, this is a work in progress as we await additional information from the state and of course as our experiences may dictate,” said Mark Hayes, director of legal services at the Arkansas Municipal League.
The Municipal League’s recommended policy states that anyone authorized to use medical marijuana cannot be disciplined “solely because of a positive test for marijuana.”
Cities and counties should prohibit the use of medical marijuana at the workplace or during work hours, just as they prohibit drugs and alcohol under those conditions, both model policies state.
In order to discipline an employee who is a medical marijuana cardholder and who tests positive for marijuana in a drug test, supervisors must rely on “reasonable suspicion” based on observations or credible information that the employee has used the substance at work or during work hours.
The Arkansas Medical Marijuana Amendment does not exempt a patient from drug testing.
Little Rock — and other cities that follow the Arkansas Municipal League’s policy — drug-tests employees after there is reasonable suspicion that they are under the influence, as well as post-accident.
Anyone with a safety- and security-sensitive position is also randomly drug-tested and is tested before employment.
Safety-sensitive positions include law enforcement officers who carry firearms; jailers; motor vehicle operators who carry passengers, such as ambulance and bus drivers; firefighters; medical personnel; mechanics; welders and metal workers; lifeguards; emergency service dispatchers; operators of heavy equipment; and wastewater treatment plant operators.
Security-sensitive positions include any police department employee who has access to information concerning ongoing criminal investigations.
Reasonable suspicions include observed conduct or appearance, information reported by a credible person, written or verbal statements from the employee, lawful video surveillance, court records, information from a physician, or other information reasonably believed to be accurate.
The Arkansas Medical Marijuana Amendment “restricts an employee in a safety [or security] sensitive position from performing those duties if a positive test result occurs even if the employee is a qualifying patient under the Amendment and/or holds a registry identification card,” according to the Association of Arkansas Counties’ updated model policy.
Bill Mann, Little Rock’s chief deputy city attorney, was asked by the city’s Human Resources Department to advise on how to proceed in updating the city’s drug policy. Mann based his opinion on the Arkansas Municipal League’s recommended policy.
“Employers are protected from liability if they act on a good faith belief that an applicant or employee possessed, smoked, ingested, or otherwise engaged in the use of marijuana while on city premises or during work hours. One caveat: a positive test result for marijuana cannot provide the sole basis for a good faith belief,” Mann wrote.
“The safest approach until case law develops further would be to treat medical marijuana the same as other prescription drugs that could impact the ability of a person to perform the essential functions of the job,” the opinion said.
That would include providing the job description to the employee’s doctor and inquiring whether the person can safely perform the essential functions.
The Arkansas Medical Marijuana Amendment states that 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.”
The law does not prohibit an employer from refusing to hire an applicant who tests positive for marijuana, according to Mann’s opinion and the model policies.
“An applicant for a safety-sensitive position may be denied employment if he or she does not successfully pass a pre-employment drug test. For current employees, the AMMA restricts employees from performing those [safety-sensitive] duties if a positive test occurs. This does not constitute discrimination under the AMMA,” Mann said in an interview.
While Arkansas’ law does not require employers to offer reasonable accommodations, Mann advised the city to proceed with caution.
“While the AMMA does not require that employees be accommodated as it relates to the use of marijuana on the job during work hours, the fact remains that if a person advises the hiring authority that they are authorized to use marijuana for medical purposes it is wise to engage in an interactive process even if there is no realistic possibility of a reasonable accommodation,” he wrote in his opinion. “This is especially true given that we have no Arkansas case law interpreting the AMMA. This is still evolving and we will be watching for any interpretive guidance that may be issued by courts or other authoritative sources.”
He pointed to a Massachusetts case in which a judge ruled that employers have a duty to engage in an interactive process with the employee to determine whether there were equally effective medical alternatives that would not be in violation of company policy.
In a case in New Mexico, where the state statute is like Arkansas’ in that it doesn’t require an employer to accommodate medical marijuana cardholders, a federal court dismissed a man’s complaint.
Mann wrote that “this would likely be the result in Arkansas.”
In that case, a man reported his medical marijuana eligibility during an interview, was offered the job, and then was fired after testing positive for the drug.
Still, “since qualified patients may be regarded as legally using marijuana, it is important to at least engage the employee with possible accommodations should the issue be raised until we receive guidance from the courts as to any requirement to afford a reasonable accommodation,” Mann’s opinion said.
“An employee who is going through a period where usage of medical marijuana has been prescribed may choose to take available leave that would allow them to return when they did not need to use medical marijuana. Each situation could be different,” he said in an interview.
Other cities and counties are reviewing their policies for compliance with the medical marijuana amendment.
Colin Jorgensen, an attorney with the Association of Arkansas Counties, said the association’s model policy is only a recommendation and that counties are free to amend it as they see fit.