Under Arkansas's medical marijuana law, can an employer designate any job that handles confidential information as a 'safety sensitive position', or only jobs handling criminal investigation files?

Plain-English summary

Arkansas's medical marijuana program, enshrined in Amendment 98 of the state constitution, generally protects qualifying patients from being fired or refused employment because they hold a medical marijuana card. There's an exception: employers can exclude a patient from a "safety sensitive position" if they have a good-faith belief the patient is using marijuana.

Representative Wing asked Attorney General Rutledge to interpret one prong of the definition of "safety sensitive position." That prong covers a position "working with confidential information or documents pertaining to criminal investigations." Wing's question: does "pertaining to criminal investigations" modify both "confidential information" and "documents," or only "documents"? In other words, can a job that handles confidential medical, financial, or HR records qualify, or only jobs handling criminal investigation files?

The AG concluded the prong identifies two separate positions. The disjunctive "or" creates an alternative: (1) jobs working with confidential information of any kind, and (2) jobs working with documents pertaining to criminal investigations. So a job handling confidential information that has nothing to do with criminal investigations can still be designated safety-sensitive under this prong.

What this means for you

Employers and HR

This expands the pool of jobs an employer can designate safety-sensitive under Amendment 98. Any role that genuinely involves working with confidential information, HR files, financial records, medical records, attorney-client privileged communications, trade secrets, plausibly fits within the AG's reading. That said, the safety-sensitive designation is not a free pass. The employer still needs a "good faith belief" that the qualifying patient is engaged in current marijuana use before excluding them, and the designation should be reasonable for the role's actual duties. Document the basis for designating a position safety-sensitive in a written job description and apply the policy consistently.

Qualifying patients and applicants

If your employer designates your role as safety-sensitive based on this prong, the AG's reading allows that designation even when the confidential information you handle is not criminal investigation material. If you believe the designation is pretextual or applied inconsistently, an employment attorney can review whether the action is consistent with Amendment 98's anti-discrimination provisions and the employer's stated criteria.

Public-sector positions

The opinion's reading is particularly relevant for state and local government roles, where many positions handle confidential records of one kind or another. The AG's interpretation gives public employers the same room as private employers to designate confidential-records roles as safety-sensitive.

Common questions

Does this opinion mean any job touching confidential information is automatically safety-sensitive?

No. The opinion only addresses one prong of the definition and one question about it. The position still has to fit the criteria of "safety sensitive position" under Amendment 98, and the employer still has to act in good faith. The opinion clarifies that "confidential information" stands alone, but it does not redefine "confidential."

What other positions count as safety-sensitive under Amendment 98?

Amendment 98's definition is broader than the single prong addressed here. It covers positions involving carrying a firearm, operating a vehicle or heavy equipment, performing certain food handling, dispensing pharmaceuticals, performing patient care, and other categories. This opinion only addresses the confidential-information prong.

What is "good faith belief" of current marijuana use?

Amendment 98's safe harbor lets the employer act on a good-faith belief that the qualified patient is currently using marijuana. The opinion does not flesh that out, but employers typically rely on objective indicators like a positive drug test, observed impairment, or admission. Pure suspicion based on patient status alone is not enough.

Can I be fired solely for having a medical marijuana card?

No. Amendment 98 § 3(f)(3)(A) prohibits an employer from discriminating against an applicant or employee based on the employee's status as a qualifying patient or designated caregiver. The exclusion safe harbor only kicks in for safety-sensitive positions when the employer has a good-faith belief of current use.

Background and statutory framework

Amendment 98, adopted by Arkansas voters in 2016, legalized medical marijuana for qualifying patients. Section 3(f)(3)(A) prohibits employment discrimination based on patient or caregiver status. Section 3(f)(3)(B)(iii) creates a safe harbor allowing employers to exclude qualifying patients from "safety sensitive position[s]" based on a good-faith belief about current marijuana use.

The definition of "safety sensitive position" appears at section 2(25)(B)(i) and includes multiple categories. The prong at issue here, subdivision (c), defines it to include "a position ... working with confidential information or documents pertaining to criminal investigations."

The AG applied a standard canon of statutory construction: the disjunctive "or" creates alternatives. The Arkansas Supreme Court in McCoy v. Walker described "or" as "a disjunctive particle that marks an alternative." The U.S. Supreme Court has said "or" is "almost always disjunctive, that is, the words it connects are to be given separate meanings." Reading "or" disjunctively means "confidential information" and "documents pertaining to criminal investigations" are distinct categories.

Citations

• Ark. Const. amend. 98, § 2(25)(B)(i)(c) (definition of safety-sensitive position)
• Ark. Const. amend. 98, § 3(f)(3)(A) (anti-discrimination)
• Ark. Const. amend. 98, § 3(f)(3)(B)(iii) (safety-sensitive safe harbor)
• McCoy v. Walker, 317 Ark. 86 (1994)
• Beasley v. Parnell, 177 Ark. 912 (1928)
• Reiter v. Sonotone Corp., 442 U.S. 330 (1979)
• United States v. Woods, 571 U.S. 31 (2013)
• State ex rel. Stenehjem v. FreeEats.com, Inc., 2006 ND 84
• Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts (2012)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2021-031
August 2, 2021
The Honorable Carlton Wing
State Representative
2513 McCain Boulevard
Suite 208
North Little Rock, AR 72116-7606

Dear Representative Wing:

This is in response to your request for an opinion concerning Amendment 98 to the Arkansas Constitution, the Arkansas Medical Marijuana Amendment of 2016 ("Amendment 98" or "Amendment"), which legalized the possession and use of medical marijuana under state law for certain qualifying individuals. Amendment 98 generally protects job applicants and employees from discrimination based on their status as qualified patients or caregivers. But the Amendment also includes the following safe harbor for employers in connection with "safety sensitive" positions:

A cause of action shall not be established against an employer based upon, and an employer is not prohibited from, any of the following actions:

Acting to exclude a qualifying patient from being employed in or performing a safety sensitive position based on the employer's good faith belief that the qualifying patient was engaged in the current use of marijuana.

Your question relates to this safe harbor, and more specifically Amendment 98's definition of "safety sensitive position." As you note in your request for my opinion, the definition includes "a position ... working with confidential information or documents pertaining to criminal investigations[.]" In this regard, you ask:

whether this definition of a position that may be designated as safety sensitive under [Amendment 98] is limited to only those positions working with confidential information pertaining to a criminal investigation, or if positions working with confidential information unrelated to criminal investigations would also fall under this definition for designation as safety sensitive.

RESPONSE

In my opinion, the definition identifies two distinct positions, one that involves working with confidential information and one that involves working with criminal investigation documents. This follows from the disjunctive "or" in the definition, which introduces an alternative. As observed by the Arkansas Supreme Court: "In its ordinary sense the word 'or' is a disjunctive particle that marks an alternative, generally corresponding to 'either,' as 'either this or that'; it is a connective that marks an alternative."

Thus, the language of Amendment 98 in question identifies two distinct and independent positions: one that involves working with confidential information and one that involves working with criminal investigation documents. Accordingly, and in response to your specific question, the definition of "safety sensitive positions" under Amendment 98 is not limited to positions working with confidential information pertaining to a criminal investigation.

Sincerely,

LESLIE RUTLEDGE
Attorney General