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Can I be fired if I have a medical marijuana card?

Many Arkansas medical marijuana cardholders have questions about whether they can be fired.

The answer is that the Arkansas Constitution protects all medical marijuana cardholders from being fired for having a medical marijuana card.

However, this is increasingly an issue. Many do not understand the law.

According to this article in Arkansas Business, “there were nearly 77,000” medical marijuana cardholders in Arkansas and growing.

Confusion has come with this growth. Many have concerns about possible illegal actions to fire or not hire medical marijuana cardholders.

To simplify what the Arkansas Constitution and state law say; here are clear answers on what employers can and cannot do under Arkansas law:

Employers cannot:

  1. “discriminate against” a job “applicant…based upon the applicant’s status as a qualifying [medical marijuana] patient”;
  2. decline to hire a medical marijuana patient for a non-safety-sensitive position because of a positive marijuana test away from work; and
  3. fire a medical marijuana patient for a non-safety-sensitive position because of a positive marijuana test away from work

Employers can:

  • Not accommodate the ingestion of marijuana in a workplace or an employee working under the influence of marijuana;
  • Have a “drug testing program”
  • Fire or decline to hire applicants based on the use of any drugs “on-premises,”
  • Decline to hire or fire medical marijuana patients who fail a drug screen for drugs other than marijuana.
  • Decline to hire a medical marijuana patient for a “safety-sensitive position.”
  • Report an employee who operates, navigates or is in actual physical control of any motor vehicle, aircraft, motorized watercraft or any other vehicle drawn by power other than muscular power while under the influence of marijuana; and
  • Designate positions as safety-sensitive, and include the required physical and mental competencies

More details on the law from Arkansas Business article:

“Under the law, employers can decide not to hire a medical marijuana patient for a “safety-sensitive position,” such as being a truck driver or manufacturing explosives.

“So the trucking industry could designate positions as safety-sensitive and then not be forced to hire someone on drugs,” said Reed’s attorney, Chris W. Burks of WH Law of North Little Rock. “The problem is that a lot of employers in Arkansas don’t understand that they have to designate that position as safety-sensitive … on the front end.”

Burks said there are several employers who think that they can fire or not hire an employee who is a medical marijuana card holder if they fail a drug test for pot, Burks said.

“But that’s not correct,” he said. “And the reason you haven’t seen a lot of lawsuits about this is that most of the businesses that make that mistake are smaller.” Burks wants Reed’s complaint to be a “test case” because Northwest Arkansas Hospitals is “a large employer.”

An employer with more than 500 employees, which the defendant has, could face a penalty of up to $300,000 per person per violation of the state Constitution.

“It’s something that I think will continue to be of importance because more people are getting the cards and more businesses are coming into the state,” Burks said. As of last week, there were nearly 77,000 Arkansas cardholders.”

In light of all these detailed requirements, it is important to speak with an employment law attorney familiar with Arkansas law and your specific situation. wh Law can help if you have any issues. If you think your employer may have done something incorrectly, call and schedule a free consultation today.