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.

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123RF Copyright : W.Scott McGill 

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.



On April 19, 2017, Governor Jim Justice signed the West Virginia Medical Cannabis Act, marking the 29th state to adopt such a program.

The Act identifies 16 specific medical conditions for which patients can use cannabis to treat, including cancer, Parkinson’s disease, and terminal illnesses. The law will become effective on July 5, 2017, and the state plans to begin issuing patient ID cards on July 1, 2019.

For more details and the full text of the bill, click here.

See my posts here, here, and here regarding the Florida Legislature’s efforts to pass laws to implement Amendment 2 (medical marijuana passed by Florida’s voters in November 2016).

Unless a special session is called, the Florida Legislature closes out this session with no agreement on medical marijuana.  Issues related to the number of grower licenses and how those licenses would be linked to storefronts created an insurmountable disagreement.

Supposedly and ironically, the pro-cannabis powers were instrumental in the demise of medical marijuana in the legislature.  The issue of  how many storefronts the current license holders (7 at present) could operate has been a large part of the debate.  The Senate wanted to cap the number of retail locations for each license holder so that these 7 license holders could not consolidate too much market power.

With the failure by the Florida Legislature, that means Florida’s Department of Health, under Governor Rick Scott, will now be responsible for creating regulations for Amendment 2.  That does not bode well for the cannabis industry or patients, since Gov. Scott is anti-medical marijuana.

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Also expected, fierce litigation from patients, physicians and businesses now that the legislature has failed.


Dori K. Stibolt is a West Palm Beach, Florida based partner with the law firm of Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues.  You can contact Dori at 561-804-4417 or

With time running out in the session, Florida’s Senate passed SB 406 (regulations to implement Amendment 2) late last night.  Now, the Florida Senate and House need to work out their differences, see my recent post on the House Bill.

Florida’s Senate and House have reached agreement on the following:

  • No smoking, but yes to vaping and edibles.
  • A House requirement that doctors must wait 90 days after meeting with a patient to issue a prescription has now been eliminated.

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The ban on smoking remains controversial.  My own state senator, Jeff Clemens, remains critical and had this to say.

There are people out there who this is still not going to help, there are people who only get the relief that they need through smoking.

The differences that need to be worked out between the House and Senate include the big issue of the number of licenses allowed for growers/distributors.  As I noted in my earlier post, the House’s Bill included unlimited retail locations for license holders, but limited the number of licenses.  To force the House on the issue of limited licenses, and to limit any one company from becoming too dominant, the Senate put a cap on the number of retail dispensaries each license holder can operate.

Florida for Care, the group that led the campaign to pass the marijuana amendment, supports the Senate’s position on the number of licenses noting the Senate Bill:

would allow for the marijuana industry to grow alongside the patient population, providing competition and reasonable access.

The House and Senate also disagree on the tax treatment for medical marijuana, the House proposes it be tax free.

With just a couple days left in the session, we’ll see if the differences can be ironed out between the two bills.  Either way, litigation is likely.  If the Florida legislature fails to pass a bill implementing Amendment 2, any Floridian can sue.  Litigation is also likely if the Florida legislature passes a bill that bans smoking of medical marijuana or overly limits the number of licenses.


Dori K. Stibolt is a West Palm Beach, Florida based partner with the law firm of Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues.  You can contact Dori at 561-804-4417 or

In March and April, I posted about two Florida House and one Florida Senate proposals to implement Amendment 2 (which legalized medical marijuana in November 2016).

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The Florida House of Representatives has now passed HB 1397, which was one of the more restrictive proposals.  However, HB 1397 has been amended to add some uses, and has been expanded to add more licenses.  The highlights are:

  • Prohibits smoking, but permits vaping and edibles.
  • No caps on the number of retail locations permitted.
  • The current seven licensed growers continue to be licensed for medical marijuana and Florida will add 10 more licenses as soon as practicable and no later than July 2018.
  • People with chronic pain can access medical marijuana, but only if that pain is directly linked to a debilitating condition that would have qualified them regardless.

The limited number of licenses provided in HB 1397, has been harshly criticized by many in the cannabis business.


Dori K. Stibolt is a West Palm Beach, Florida based partner with the law firm of Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues.  You can contact Dori at 561-804-4417 or

Effective today, retail shops and medical marijuana dispensaries in the City of Denver will have the right to remain open until 10:00 PM. Under Colorado law local jurisdictions have the authority to regulate the time, place, manner and number of marijuana stores, or prohibit their operation altogether.

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Copyright: phaseout / 123RF Stock Photo

Previously, Denver’s ordinances permitted stores to remain open until 7:00 PM.

Earlier versions of the bill contemplated 12:00 AM midnight as the new closing time.  The Council’s passage of Denver’s bill was in part motivated by the City’s desire to compete with adjacent municipalities such as Commerce City and Aurora, which requires stores to close at 10.

Pennsylvania Department of Health Secretary Dr. Karen Murphy just concluded a Press Conference, where she, along with John J. Collins, Director of Pennsylvania’s Office of Medical Marijuana, provided an update on the Grower/Processor and Dispensary Application process and took questions from the Press.

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Copyright : iqoncept

The application deadline for Grower/Processors and Dispensaries was March 20 and the DOH originally set a 90-day period for review of the applications. Secretary Murphy stated today that the review process is proceeding on schedule and that the DOH expects to be completed by that time. Therefore, all current indications are that applicants will receive a decision by late June regarding whether they will receive a permit to grow or dispense medical marijuana in Pennsylvania. Thereafter, the law requires that each permitted facility become “operational” in 6 months.

After announcing the award of permits, Dr. Murphy stated that the DOH will turn its attention to soliciting physicians to register as licensed practitioners under the Medical Marijuana program and to assist them in the process, which will ensure that there are enough physicians to serve prospective patients throughout the State. We recently blogged about this process, as did Fox’s Physician Law Blog.

Make sure to check back for more updates on the Department’s review of applications as the permit award deadline approaches!

Last week, I posted an update regarding the Department of Health’s release of Draft Temporary Regulations for Physicians. Over at Fox’s Physician Law Blog, my colleague Ed Cyran took a more in-depth look at what the Regulations may mean for physicians who register under Pennsylvania’s Medical Marijuana Program. See Ed’s analysis here.

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Copyright : Alexander Korzh