Examining Amended Section 3 of Amendment 98:

Frequently Asked Questions About the Risks of Becoming A Qualified Patient under Arkansas’ Medical Marijuana Act of 2016

About the author:

Robbin Rahman, J.D., is a member of the board of the Arkansas Cannabis Industry Association and is an attorney with Barber Law Firm, PLLC, a general practice law firm based in Little Rock, Arkansas. Robbin has over 17 years of experience as a corporate lawyer helping businesses solve critical financial, operational and legal problems. Robbin has been engaged in a broad range of business-related matters, including commercial transactions, general corporate law, corporate bankruptcy matters, secured transactions, foreclosures and business litigation. Over the course of his career, Robbin has been involved in some of the largest, most complex restructuring cases in the country, including the bankruptcy case of one of the “big three” automotive manufacturers, a multi-billion dollar Houston-based oil and gas company, a well-known airline and one of America’s oldest steel manufacturers. In addition, Robbin has acted as counsel to a wide-variety of clients, including local, privately-held businesses as well as large, national corporations, investment banks, trustees and other business organizations. Robbin has regularly appeared on behalf of his clients in federal and state courts in numerous jurisdictions across the country, including New York, Delaware, Georgia, Florida, Illinois, Texas and California and has significant appellate court experience, including multiple appeals to the 11th Circuit Court of Appeals.

Over the course of the next three to six months, Arkansas’ newest industry, the cultivation, processing and dispensing of medical cannabis, will open its doors and begin the process of integrating itself into the Arkansas business community as well as the everyday lives of Arkansas citizens. For those Arkansans who eagerly have been awaiting the arrival of this new industry and intend to purchase medical cannabis as soon as dispensaries have opened their doors for business, this process cannot happen fast enough. As of the date of this article, nearly 2,300 “Registry Identification Cards” have been issued by the Arkansas Department of Health, which, upon issuance, designate the holder as a “Qualified Patient” under applicable law, entitling the holder to legally purchase medical cannabis with all of the protections afforded by Arkansas’ medical cannabis laws. Notwithstanding the exuberance of some, others likely will take a more cautious approach. And with good reason: cannabis remains illegal under Federal law and will be subject to an unknown reception from, among others, local employers, businesses and communities. Because of this uncertainty, the Arkansas Cannabis Industry Association (ACIA) routinely receives questions from potential card-holders regarding, among other things, whether becoming a “Qualified Patient” and purchasing medical cannabis will come at the expense of their employment, their business contacts and other important relationships. Several of the most commons questions are set forth below, along with an analysis of the answer.

Question #1

What is a Registry Identification Card?

Short Answer: A Registry Identification Card is required if you want to legally purchase medical cannabis in Arkansas. It is issued by the Arkansas State Board of Health and, in general, requires that you get a doctor’s written certification regarding your qualifying condition and also requires that you pay a fee of $50.00.

Long Answer: If you suffer from one or more of the qualifying conditions set forth in Amendment 98, you may be eligible to purchase medical cannabis in Arkansas to treat your condition. However, before you will be legally permitted to do so, you must first obtain a Registry Identification Card from the Arkansas Department of Health (the “ADH”). Section IV of the Rules and Regulations Governing Medical Marijuana Registration, Testing and Labeling in Arkansas (the “ADH Rules”) sets forth the requirements for obtaining a Registry Identification Card. The requirements including, among other things: (a) a written certification from a medical doctor licensed in Arkansas, certifying that you suffer from one or more of the qualifying medical conditions; and (b) payment of a fee of $50.00. In addition, if you are from out of state, you may be eligible to purchase medical cannabis if you can provide proof that you have a valid registry identification card (or its equivalent) issued by another state.

It is important to understand that a Registry Identification Card is a fundamental necessity if you wish to purchase medical cannabis in Arkansas. If you fail to obtain a Registry Identification Card or if you allow it to expire or lapse, you will not be permitted to purchase medical cannabis at any licensed cannabis dispensary and any protections that are granted under Amendment 98, such as immunity from prosecution for possession or use of medical cannabis, will not apply and you may be subject to, among other things, otherwise applicable civil and criminal penalties.

Question #2

Will my name or any of the sensitive information I provide to the Arkansas Department of Health (ADH) be disclosed if I get a Registry Identification Card?

Short Answer: No. The ADH will keep your sensitive information confidential. However, once the information leaves the hands of the ADH, any protections built into the law may be compromised.

Long Answer: To obtain a Registry Identification Card, an applicant must fill out an application and submit it to the ADH along with the required fee. The application process takes approximately 14 days and will be granted or denied based upon, among other things, whether complete information has been provided by the applicant and whether any of the information was misrepresented, forged or otherwise fraudulent. The Registry Identification Card application requires that the applicant provide the ADH with several types of personally identifiable information, such as name, address, date of birth and a copy of the applicant’s Arkansas-issued driver’s license. In addition, in the case of a “Qualified Caregiver”, the Health Department also will conduct a criminal background check to determine whether the applicant’s criminal history is suitable to become a qualified caregiver.

Upon the granting of a Registry Identification Card, the holder’s name will be added to a list that will be maintained by the ADH. This list, however, will be treated as confidential information that is not subject to disclosure under, among other things, Arkansas’ Freedom of Information Act. In addition, all other information provided by a qualified patient in the application process to the ADH will be treated as confidential. Finally, the ADH Rules also make clear that the ADH will cooperate with law enforcement in validating a Registry Identification Card, but only to the extent necessary to authenticate the Registry Identification Card. These rules help to ensure that any information provided by the qualified patient to the ADH remains confidential and, while the ABH will maintain a list of the names of all Registry Identification Card holders, the list will not be subject to disclosure. Keep in mind, however, that the ABH will cooperate and provide certain limited information to other governmental agencies, including law enforcement, the Arkansas Alcoholic Beverage Control Board and the Arkansas Medical Marijuana Commission. As a result, once the information leaves the hands of the ADH, any protections guaranteed by the ADH Rules will likely be inapplicable or, at best, compromised.

Question #3

Am I risking my job simply by getting a Registry Identification Card?

Short Answer: No, the law specifically protects an employee (or job applicant) against any discrimination or other penalties solely as a result of such person’s status as a Registry Identification Card holder. Until more is known, it probably is safest to keep your status as a card holder to yourself.

Long Answer: First, the list of Qualified Patients in possession of a Registry Identification Cards will be kept confidential by the ADH. Accordingly, absent a voluntary disclosure by the employee/applicant, it is unlikely that anyone, including any employer, will know who is a Qualified Patient and who is not. In addition, in early 2017, the Arkansas Legislature amended Amendment 98 (the Constitutional Amendment legalizing medical cannabis in Arkansas), including a substantial revision of the original employee/employer protections of Amendment 98. In general, under the newly amended law, an employer can be sued for unlawful discrimination if it can be shown that the employer failed to hire, terminated, discriminated against or otherwise penalized an employee or applicant solely on the basis that such employee or applicant is or was the holder of a Registry Identification Card. The damages available to an employee or applicant are identical to those available to an aggrieved employee under the Arkansas’ Civil Rights Act of 1993. So, as a general statement, simply obtaining a Registry Identification Card will be a largely anonymous act that is protected by Amendment 98 and any employer who violates its protections is subject to a lawsuit.

Notwithstanding these protections, it is important to understand that Amendment 98’s protections are not absolute. For example, as the language of the Amendment makes clear, the protections only apply to discrimination or penalties that are solely based on the employee/applicant’s status as a card holder. If the employer can demonstrate that the actions it took vis-à-vis the employee/applicant were non-discriminatory or based upon more than mere card-holder status, the employee protections may not apply and the employer may be able to overcome any claims that it acted improperly. Moreover, if the employer has fewer than 9 employees in the State of Arkansas, the employee protections will not apply.

Question #4

Can I be fired from my job for lawfully using medical cannabis?

Short Answer: Maybe, but the answer depends largely on your employer’s policies. For example, if your employer has adopted a drug-free workplace policy or other drug testing policy, your legal medical cannabis use can be the basis of various actions by your employer, including your termination. Even in the absence of such a policy, your employer has no obligation to allow you to use medical cannabis while on the job, or to allow you to be “under the influence” at work. If your employer has virtually any evidence of on the job use, they can take a variety of actions, including terminating you. Although a failed drug test is not enough by itself, a failed drug test plus virtually any additional evidence (even if the evidence is circumstantial, unreliable or turns out to be untrue) can give the employer all the ammunition it needs to take action. Of course, just because your employer can do these things does not mean they will. The best advice is to first take time to fully read and understand your employer’s policies and procedures and make sure you understand your employer’s position on this issue. Ultimately, it will be up to the employer to think through these issues and determine how aggressively they will police their employees.

Long Answer: This is a complicated topic, full of hazard for the employee, so the details are important. First, as set forth above, Amendment 98, as amended in 2017, generally protects employees or applicants from discrimination or other penalties solely as a result of the employee/applicant’s status as a Qualified Patient (i.e., a holder of a Registry Identification Card). However, largely as a result of the 2017 amendments, a substantial amount of leverage has been granted to the employer regarding the actions they may take with respect to employees/applicants who are Qualified Patients and also lawfully use or consume medical cannabis. For example, an employer is permitted to implement a substance abuse or drug-free workplace policy that includes drug testing and the employer is further permitted to take action against any employee/applicant who fails a drug test implemented under the drug-free workplace policy. In other words, if an employer has a formal drug-free workplace policy and an employee/applicant tests positive for the use of medical cannabis (whether the use was legal or otherwise), the employer would be within its rights to terminate the employee (or reject the applicant’s job application).

Moreover, an Arkansas employer is not required to accommodate “on-the-job” use of medical cannabis in any manner (as is the case in every state in which medical cannabis is legal at the state level). An employer is permitted to take action against any employee the employer believes is using, or otherwise “under the influence” of, medical cannabis while at the workplace, based upon a “good faith belief.” Good faith belief is defined in an expansive manner, permitting the employer to rely on virtually any evidence it reasonably believes to be reliable, including “written, electronic, or verbal statements from the employee or other persons” as well as “information from reputable reference sources in print or on the internet.” As this language reveals, the law allows the employer to rely on information that is inherently unreliable. In fact, the employer’s belief need not actually be correct, so long as the evidence relied upon by the employer in forming its good faith belief is not so obviously unreliable or without basis that accepting it as truth would constitute “gross negligence.” Accordingly, a fellow employee’s (or even non-employee’s) statements on social media, an overheard office rumor or an errant email communication between third parties each have the potential to provide sufficient evidence for an employer to lawfully terminate an employee. The only good news here is that a failed drug test by itself likely cannot serve as the sole basis for the employer’s good faith belief – there must be other evidence.

The circumstances under which an employee may be considered to be “under the influence” also are defined in the Amendment in a way to give employer’s significant latitude. Examples of potentially sufficient circumstances include the employees “appearance” or “clothing”, as well as mere “involvement” in an accident that results in “disruption of a production or manufacturing process.” The Amendment does not seem to hinge on the manner in which the employee was “involved” in an accident (i.e., must the employee be at fault? Or is it enough that the employee was present when an accident occurred through no fault of the employee?). Moreover, the Amendment does not attempt to specify the types of process interruption or resulting damage that is suggestive of being under the influence (i.e., must the process involve complex equipment, expensive raw materials and significant skill? Must the interruption result in damage? Or, does it include something as trivial as incorrectly photocopying a single document or a spilled cup of coffee?).

Finally, consistent with other state and federal rules and regulations that identify certain “safety-sensitive” positions that must be performed free of any form of impairment, Amendment 98 also permits an employer to exclude an employee or applicant from any position identified as “safety sensitive.” The Amendment defines safety sensitive broadly to incorporate essentially any position identified by any federal or state agency as safety-sensitive, as well as any position designated in writing by an employer as safety sensitive, including, for example, any position that requires carrying a firearm, performing life-threatening procedures; working with confidential information, working with food or medicine or operating, maintaining, repairing or monitoring heavy equipment or machinery. Accordingly, it seems likely that, to the extent an employer wants to identify virtually any position as safety-sensitive, the Amendment grants sufficient authority to do so. The keys to excluding an employee from a safety sensitive position are: (1) the safety sensitive designation is in writing and (2) the employer has a “good faith belief” of current use of medical cannabis. While the writing portion of this requirement is easy enough, it is unclear what is required to satisfy the employer’s “good faith belief of current use of marijuana.” As described above, the good faith belief standard is anything other than gross negligence (including actual negligence), so it is possible that nearly anything will be sufficient to satisfy this requirement.

Question #5

What steps, if any, can I take to protect myself?

Short Answer: Most importantly, educate yourself about what the law permits and your employer’s policies and procedures. Make sure you fully understand your employer’s position on this issue and what steps they’ll take if they determine that you are in violation of their written policy. Always remember, your employer needs very little evidence to take action and they are permitted to take action, in some circumstances, even if it turns out they were wrong. As a result, always exercise extreme care and a healthy dose of common sense. Be careful with whom you share your plans and, if an issue arises, make sure you document everything.

Long Answer: As the answers to the above-questions make clear, Amendment 98, as amended in 2017, provides employers with significant discretion to take actions against an employee the employer believes to be engaged in the use of medical cannabis. While employees and applicants are granted limited protections against discrimination solely on the basis of their status as a Registry Card Holder, if the employee actually uses or consumes medical cannabis, the protections become significantly weaker. Furthermore, even when an employee does not use cannabis in the workplace, an employer may still discipline an employee for being “under the influence.” As a result, an employee is well-advised to proceed with caution. Of course, just because an employer has significant latitude in how it treats its employees who chose to participate in Arkansas’ medical cannabis industry, it is not a certainty that employers will take a hard-line approach or otherwise actively seek out Registry Card Holders for the purpose of removing them from their company. At this point, it is just as likely that most employers will wholly ignore the medical cannabis industry unless and until problems arise. However, in light of the unfavorable legal landscape and the significant uncertainty as the industry develops, every employee of an Arkansas employer should take steps to educate themselves about the relevant laws to ensure that they can get access to medical cannabis with as little risk to their employment as possible.

Set forth below is a non-exhaustive list of issues that every employee should consider before they obtain a Registry Identification Card and become a Qualified Patient:

Are you fully versed on your employer’s policies? If not, educate yourself immediately. In particular, has your employer adopted a written policy or guideline regarding medical cannabis?
Has your employer adopted a written substance abuse or drug-free workplace policy that includes a drug testing program?
If they have, are you subject to drug testing? If not, do you know whether they intend to?
Even if your employer does not have a drug-free workplace policy or a substance abuse program, it is important to understand that if you use or otherwise consume medical cannabis at work or are otherwise under the influence during working hours, you can be terminated, reassigned, penalized or otherwise reprimanded pursuant to Amendment 98. It is critical that you understand the circumstances under which you can be impacted.
To what extent do you intend to be public about your participation in Arkansas’ medical cannabis industry?
Do you plan to tell other people about your interest? Do you intend to post about it on social media? Or, do you plan to keep it a secret, or only share with a few close friends?
If your plans include freely sharing with your friends and coworkers, understand that making it known that you are, for example, a Registry Card Holder, can have consequences depending on your employer. Until more is known, discretion likely is the better approach.