In November 2016, Arkansas passed a constitutional amendment (Amendment 98) establishing a medical marijuana program. The legislature recently added provisions to the law, resulting in significant protections for Arkansas employers.

The amendment includes sections that clarify when an employer can take an adverse employment action against an employee who is a medical marijuana user, and some that place limits on an employee’s right of action under the law, such as:

• Limiting coverage to employers with 9+ employees
• Barring suit if an employer takes an action pursuant to a “substance abuse or drug-free workplace policy”
• Barring suit if the employer has a “good faith belief” the employee possessed, used, or was under the influence of marijuana “while on the premises of the employer or during the hours of employment”
• Capping damages in the same way as other employment discrimination claims under Arkansas law

The amendment also makes clear that a written certification (a document from a physician stating that the patient has a medical condition covered by the Act) “is not a medical prescription.” This provision could potentially limit an employer’s obligations under both the ADA and the FMLA when considering an employment decision.

Arkansas is one of the few states that has adopted such strong employer protections in their medical marijuana statute, and each state’s approach is different. It is essential that every business understand the laws of each state where they operate, especially as more and more states implement medical marijuana programs (29 in total, as of this blog).

You can read the full text of the Arkansas amendment here.

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