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Healthcare Financial Management Association (HFMA)
Arkansas ChapterMedical Marijuana and the Workplace 2.0
August 24, 2018
H. Wayne Young, Jr.Partner
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Arkansas Medical Marijuana Amendment
TOPICS
Brief recap of what the law does and updates since Spring 2017.
Policy drafting and implementation practical tips.
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Brief Recap
Arkansas Medical Marijuana Amendment
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What does it do?
Outlines a Process for the
Establishment and Regulation of
Cultivators Who Grow or Produce Marijuana
and
Dispensaries that Sell Marijuana
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What does it do?
Outlines the Process by which an
Individual can Become a
“Qualifying Patient”
who can use
Medical Marijuana
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Qualifying Patient
A “Qualifying Patient”
can use
Medical Marijuana
If Doctor Certifies that He/She has a
“Qualifying Medical Condition”
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Qualifying Medical Condition
Cancer
Glaucoma
HIV/AIDS
Hepatitis C
ALS
Severe Arthritis
Crohn’s Disease
Ulcerative Colitis
PTSD
Tourette’s Syndrome
Fibromayalgia
Alzheimer’s Disease
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Qualifying Medical Condition
Also Includes CHRONIC or DEBILITATING DISEASES
With Enumerated Severe Symptoms including:
Intractable Pain
Severe Nausea
Severe Muscle Spasms
Seizures
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What does it do?
Once a Physician Provides a
Written Certification of a Qualifying Condition
Then the Qualifying Patient
Can Use the Certification to Obtain a
Registry Identification Card
from the Arkansas Department of Health
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Registry Identification Card- Valid for one year;
- $50 fee
- They are NONE actually in circulation yet. From DOH’s website: “Note: Registry ID cards will not be available for printing until 1 month prior to Medical Marijuana availability in Arkansas dispensaries.”
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Provisions Related to Employment Law
“An Employer Shall Not Discriminate
Against an Individual in Hiring,
Termination, or any Term or Condition
of Employment or Otherwise Penalize
an Individual, Based Upon the
Individual’s Past or Present Status as a
Qualifying Patient or Designated Caregiver.”
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Provisions Related to Employment Law
Amendment Does Not Require
“Employer to Accommodate the
Ingestion of Marijuana
in a Workplace
or an Employee Working
Under the Influence of Marijuana.”
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ACT 593
EMPLOYERS FREE TO ESTABLISH & ENFORCE
SUBSTANCE ABUSE POLICY
OR
DRUG-FREE WORKPLACE POLICY
POLICY CAN INCLUDE DRUG TESTING PROGRAM
THAT COMPLIES WITH STATE & FEDERAL LAW
NO CAUSE OF ACTION CAN BE ESTABLISHED AGAINST AN EMPLOYER FOR ESTABLISHING POLICY
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ACT 593
EMPLOYERS NOT REQUIRED TO ACCOMMODATE EMPLOYEES WHO
INGEST MARIJUANA IN THE WORKPLACE
EMPLOYERS NOT REQUIRED TO ACCOMMODATE EMPLOYEES WHO
ARE UNDER THE INFLUENCE OF MARIJUANA
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ACT 593
“UNDER THE INFLUENCE”
Symptoms of an Employee’s Current Use ofMarijuana that May Negatively Impact thePerformance of the Duties or Tasks of theEmployee’s Job Position or Constitute aThreat to the Employee, the Coworkers of theEmployee, or Members of the Public
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ACT 593Symptoms of Employee
“UNDER THE INFLUENCE”
Speech
Walking
Standing
Physical Dexterity
Agility
Coordination
Actions
INCONSISTENT WITH EMPLOYE’S USUAL BEHAVIOR
Movement
Demeanor
Appearance
Clothing
Odor
Irrational Behavior
Unusual Behavior
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ACT 593
Negligence or Carelessness in Operating Equipment, Machinery,or Production or Manufacturing Processes
Disregard for Safety of the Employee or Others
Involvement in an Accident that Results inDamaged Equipment, Machinery or Property;Disruption of Production or Manufacturing ProcessorInjury to the Employee or Others
Other Symptoms Causing Reasonable Suspicion that CurrentUse of Marijuana is Negatively Impacting Work Performance orConstitutes a Threat to Health or Safety
Symptoms of Employee
“UNDER THE INFLUENCE”
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ACT 593
NO CAUSE OF ACTION WHEN EMPLOYER ACTS ON GOOD FAITH BELIEF THAT A QUALIFYING PATIENT / EMPLOYEE:
POSSESSED, SMOKED, INGESTED, OTHER USED MARIJUANA WHILE ON EMPLOYER PREMISES
WAS UNDER THE INFLUENCE OF MARIJUANA WHILE ON THE EMPLOYER PREMISES OR DURING HOURS OF EMPLOYMENT, BUT
POSITIVE DRUG SCREEN CANNOT PROVIDE THE SOLE BASIS FOR THE GOOD FAITH BELIEF
ACTING TO EXCLUDE A QUALIFYING PATIENT FROM PERFORMING SAFETY SENSITIVE POSITION WHEN GOOD FAITH BELIEF THAT THE EMPLOYEE WAS ENGAGED IN CURRENT USE OF MARIJUANA. “CURRENT USE” CAN BE ESTABLISHED WITH POSITIVE SCREEN.
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ACT 593“SAFETY SENSITIVE POSITION”
Position Involving Safety Sensitive Function Pursuant to Federal Regulations Governing Drug and Alcohol Testing Adopted by the U.S. DOT, or Other Federal or State Agency
Any Position Designated in Writing By An Employer as a Safety Sensitive Position in Which an Employee Who is Under the Influence of Marijuana Constitutes a Threat to the Employee, Coworkers or Members of the Public
Including Positions Where Employees: Carry a Firearm Perform Life-Threatening Procedures Work w/ Confidential Information or Docs Pertaining to
Criminal Investigations Work with Controlled Substances, Food, or Medicine
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ACT 593“CURRENT USE OF MARIJUANA”
USE THAT JUSTIFIES THE GOOD FAITH BELIEF OF AN EMPLOYER THAT AN EMPLOYEE IS ENGAGING IN THE USE OF MARIJUANA
PRESUMED WHEN A POSITIVE TEST FOR MARIJUANA OCCURS
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Updates since Spring 2017?
Jeff Sessions Memo
Trump response to proposed Congressional action
Rohrabacher-Farr Amendment
Arkansas court battles over licensing = delay
Literature
Cases
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Barbuto v. Advantage Sales and Marketing, LLC, 78 N.E.3d 37 (Supreme Court of Massachusetts, March 2017)
- Barbuto legally used medical marijuana for Chron’s disease and IBS. Told her supervisor that she would fail a mandatory pre-employment drug screen but she did not take the drug daily. She stated she only took it at night and did not take it before work.
- Supervisor told her this would not be a problem.
- HR Manager later rescinded job offer (after she had started work) on ground of failed drug test.
- Claim was brought under Massachusetts state law on for disability discrimination and failure to accommodate. Barbuto claimed the employer had failed to consider accommodations for her disability and associated medication, such as an exception to their drug testing policy.
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Barbuto v. Advantage Sales and Marketing, LLC, 78 N.E.3d 37 (Supreme Court of Massachusetts, March 2017)- The Court held that Plaintiff was a “handicapped person”
under their state statute and employer was required to consider accommodations, including making an exception to their drug policy or consider alternative methods of treatment that would not violate the policy. The Court made an analogy to the situation of an employee using legal prescription drugs that would run afoul of the drug policy.
- The Court held that an accommodation that would permit the plaintiff to be treated with medical marijuana despite the policy was not per se unreasonable.
- Employer bears burden of proof that accommodations are unreasonable (or an undue hardship under ADA).
- Dicta that suggests adverse action on account of lawful marijuana use is the same as discrimination based on status as a qualifying patient (not persuasive or binding authority).
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Would the result in Barbuto have been the same in Arkansas?
- Arkansas does have a state statute regarding disability discrimination. It excludes from the definition of “disability” current use of “illegal drugs.” But an individual with Crohn’s disease or IBS would be “disabled” on that basis, however.
- Courts are different.
- Massachusetts did not have Act 593 regarding protection for implementation and enforcement of a drug policy, including testing.
- Decision pointed out that Barbuto might not ultimately win, but the case survived a preliminary motion to dismiss.
- Barbuto’s job was preparing and serving food samples in a grocery store. Could this be a safety sensitive position?
- Court at least noted the difference in the response from the supervisor (who said it was ok) and the HR manager (who said it was not ok). Practice point takeaway: know the policy!
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Callaghan v. Darlington Fabrics Corp., (Rhode Island Superior Court, May 201)
- Plaintiff was denied hire after disclosing she had a marijuana card and would fail a drug test.
- Employer’s policy only prohibited the use of drugs on company property. (The suggestion being there was no policy on off property drug use of any kind, legal or otherwise.)
- Rhode Island has similarly worded protection for marijuana card holders as Arkansas. Also has similar language that employer is not required to accommodate marijuana use in a workplace. (The courts considering this language have held that this implies there is some duty to accommodate the usage outside the workplace.)
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Callaghan v. Darlington Fabrics Corp., (Rhode Island Superior Court, May 201)
- Court ruled in favor of employee on summary judgment without a trial.
- Employer appealed.
- No mention of anything akin to Arkansas’ Act 598.
- Would Act 598 have even helped in light of their policy?
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Takeaways from cases…- Never forget the ADA or the duty to engage in
the interactive process. A marijuana card suggests an underlying covered “disability.”
- Understand the greatest risk for these issues is pre-employment screening.
- Understand the early outcomes of these cases are in favor of the employees generally in terms of protections for off duty marijuana use so long as the employee is not impaired at work.
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What Should a Substance Abuse and Drug Testing
Policy Look Like?
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What Should the Policy Be?
- Corporate philosophy, risk tolerance and realities of staffing
- Other applicable laws, rules and contracts
DOT, Federal Contractor/Drug Free Workplace Act, OSHA, ADA
Workers’ Compensation Commission Rule 36
- Policy must be nondiscriminatory
- Key question: What about positive tests in scenarios where there is no evidence the employee was under the influence?
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Can we still have zero tolerance?
– The purpose of Act 593 was to provide the flexibility for employers to implement and enforce their otherwise lawful substance abuse and drug testing policies.
– There is a risk that provision of Act 593 could be challenged. Cases so far have not addressed the issue of status discrimination squarely or interpreted provisions like Act 593.
– Still must use interactive process under ADA/ACRA as you would for any other medication that ran afoul of drug policy.
– Lawyers disagree over what discrimination because of a patient’s “status” means. Many states have laws that specifically protect an employee if they fail a test and are not under the influence. Arkansas does not have that in Amendment 98. Dicta in cases suggest this might not matter.
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What are the other options?
– - Some tolerance for failed tests if the individual has a valid registry identification card and was not “under the influence” or applying for/working in safety sensitive position.
– - Some tolerance for anyone not in a “safety sensitive position”
– - Don’t test, Don’t tell
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Best Practices for Substance Abuse Policy
If you still want zero tolerance, I would …
- leave door open expressly in policy for ADA interactive processand other accommodation other than marijuana use
- be prepared to articulate your rationale for why accommodatingoff duty use of marijuana would be an undue hardshippresuming the employees did not report to work impaired
- go ahead and use the other aspects of the law (the lanes ofcompliance) in your policy (“under the influence” is grounds fordiscipline/discharge, safety sensitive positions)
- be prepared to be the guinea pig if challenged in court
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Other good ideas …- Mirror the factors from amendment that can be used to
determine “under the influence” in your reasonablesuspicion policy.
- Develop a form for documentation of these factors andleave room for the witness to explain in their ownwords.
- Train managers on detecting the factors.
- Identify safety sensitive positions and make necessarychanges in job descriptions and procedures for thosepositions (pre-employment screen, etc.)
- Always consider the issue of an underlying disabilitywhen evaluating the situation. Is there another
accommodation?
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Best Practices for Substance Abuse PolicyAnother good idea… Have a “self-reporting” policy, example below, for anydrug or substance that impairs the employee’s ability to perform.
Employees shall report to their immediate supervisor the use of anymedically prescribed drug, or other substance, that impairs the employee’sability to perform the essential functions of his job in a safe manner, withoutposing a threat to the safety and health of the employee, patients orothers. Employees shall also provide proper written medical authorization towork from a physician, if requested. It is the employee's responsibility todetermine whether a prescribed drug or other substance impairs his ability toperform the essential functions of his job in a safe manner, without posing athreat to the safety and health of the employee, patients or others. Failure toreport the use of such drug or other substance which impairs or failure toprovide proper evidence of medical authorization upon request may result inappropriate disciplinary action.
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QUESTIONS?
Arkansas Medical Marijuana Amendment
…ANYBODY GOT A LIGHT?
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NAME
PHONE:EMAIL:
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400 West Capitol Ave. Suite 2000 I Little Rock, AR 72201
3425 North Futrall Dr. Suite 103 I Fayetteville, AR 72703
3350 South Pinnacle Hills Pkwy. Suite 301 I Rogers, AR 72758
PARTNER
(501) 370-1402
Labor & Employment
H. WAYNE YOUNG
Phone:
Email:
