Arkansas does not force most private employers to run a drug testing program. What the state offers instead is a voluntary framework, built around a workers compensation premium credit, plus a set of rules that shape how a positive test interacts with a workers compensation claim, an unemployment claim and a medical marijuana card. Employers who understand how these pieces fit together can build a policy that holds up, without overstating what any single test or any single statute actually does.
This article covers the Voluntary Drug-Free Workplace Program under Arkansas Code 11-14-101 through 11-14-112, the injury presumption in Arkansas Code 11-9-102, the unemployment misconduct rule in Arkansas Code 11-10-514, and the employer provisions added to Amendment 98, the Arkansas Medical Marijuana Amendment. State law changes, and the exact text of any section should be confirmed through the Arkansas General Assembly or the agency that administers it before a policy is finalized.
The Voluntary Drug-Free Workplace Program (Ark. Code 11-14-101 to 11-14-112)
Arkansas Code 11-14-101 and following sections set up an opt in program commonly called Rule 36, administered as Arkansas Workers Compensation Commission Rule 099.36. An employer that adopts a program meeting the rule's standards and gets it accepted by the state can qualify for a credit on its workers compensation insurance premium, and the Code of Arkansas Rules section for the program states that the credit must be at least five percent unless the state's insurance commissioner finds that rate actuarially unsound.
Qualifying for the credit means following the rule's procedural requirements, not just announcing a policy. The full text of AWCC Rule 099.36 and the accompanying Code of Arkansas Rules section describe a program that generally requires:
- A written policy, with advance notice to current employees (the rule text states a minimum of sixty days) before testing begins.
- Employee education and documented supervisor training on recognizing signs of impairment.
- Collection and chain of custody handled by a certified laboratory following federal Department of Transportation style procedures, the same framework described in 49 CFR Part 40.
- A confirmation step, gas chromatography mass spectrometry or an equivalent method, on any specimen that screens positive, rather than relying on the initial screen alone.
- Review of a positive confirmed result by a medical review officer before the employer takes action, with the employee given a window, generally described as five working days, to explain a confirmed positive, including a valid prescription.
- Confidentiality of test results and related medical information, kept apart from the general personnel file.
- The employer bears the cost of required testing.
Because the medical review officer step is central to the whole program, it helps to understand what that review actually covers and how it differs from the initial screen; our separate explainer on the medical review officer process walks through how an MRO verifies a confirmed positive before it reaches an employer. And because the premium credit is the main financial reason employers adopt Rule 36 in the first place, it is worth comparing Arkansas's approach with how other states structure similar workers comp drug testing premium credit programs, since the credit percentage and documentation rules are not uniform from state to state.
| Testing circumstance | What Rule 36 generally expects |
|---|---|
| Job applicant | Drug test required for a conditional offer in a Rule 36 program; alcohol testing of applicants is optional under the rule. |
| Reasonable suspicion | Testing allowed when a trained supervisor documents specific, contemporaneous observations. |
| Post accident | Rule 36 ties alcohol testing to a short window after a qualifying accident and allows a longer window for drug testing, reflecting how long each substance stays detectable. |
| Random or routine fitness for duty | Permitted under a documented, nondiscriminatory selection method once the program is in place. |
| Return to duty or follow up | Testing after a rehabilitation referral, used to support continued employment decisions. |
| Confirmation method | Gas chromatography mass spectrometry or an equivalent confirmation test, reviewed by an MRO. |
Workers Compensation and the Drug Presumption (Ark. Code 11-9-102)
Arkansas workers compensation law treats a positive post injury test as more than a personnel matter. The provision now codified at Arkansas Code 11-9-102 traces to legislation that created a rebuttable presumption: when alcohol, an illegal drug, or a prescription drug used contrary to a physician's orders is present in an injured worker's system, the law presumes the injury was substantially occasioned by that substance, and the enacting legislation also states that an employee is deemed, by performing the work, to have impliedly consented to reasonable testing.
Because the presumption is rebuttable, it is not automatically the end of a claim. An injured worker may be able to overcome it with evidence that the accident was not substantially caused by the substance, and the same legislation describes a preponderance of the evidence standard for that showing. An employee who refuses a validly requested test after an on the job injury may also face a separate consequence under the same framework. Employers should treat the presumption as one part of a workers compensation defense, not a substitute for a documented, properly chain of custody tested result, and should confirm the current statutory language directly with the Arkansas General Assembly or counsel before relying on it in a specific claim, since this area of the code is amended from time to time.
Unemployment Insurance and Misconduct (Ark. Code 11-10-514)
Arkansas Code 11-10-514 disqualifies a claimant from unemployment benefits when the Division of Workforce Services finds the person was discharged for misconduct connected to the work. The Division's own Unemployment Insurance handbook defines misconduct in general terms, as careless or deliberate behavior that results in being fired or suspended, and lists being fired for misconduct among the reasons a claimant may not receive benefits.
Whether a specific drug test failure counts as disqualifying misconduct depends on the facts, including whether the employer had a written policy the employee was on notice of and whether the termination followed that policy. This determination varies by claim and is made case by case by the Division, so an employer should not assume a given termination will automatically block a former employee's unemployment claim, and should direct specific questions to the Division of Workforce Services rather than guessing at the outcome.
Amendment 98, Medical Marijuana and Safety Sensitive Positions
The Arkansas Medical Marijuana Amendment, Amendment 98 to the Arkansas Constitution, created a state registry for qualifying patients through the Arkansas Department of Health, whose medical marijuana program portal handles patient and caregiver registration. Amendment 98 also added employer specific language, later expanded by state legislation, that an amending act to Amendment 98 sets out in detail: an employer with nine or more employees generally may not discriminate against an applicant or employee based solely on past or present status as a qualifying patient or caregiver.
That protection is narrower than it sounds. The same amending language states that an employer is not prohibited from establishing and keeping a substance abuse or drug free workplace policy, including a testing program, and from taking action under that policy. It also allows an employer to act on a good faith belief, which the law defines as reasonable reliance on specific facts such as observed conduct or a reliable report, that a qualifying patient used or possessed marijuana on the premises or during work hours, or was impaired at work, as long as a positive test result alone does not provide the sole basis for that belief. Employers may also be able to exclude a qualifying patient from a safety sensitive position based on a good faith belief of current marijuana use, and current use is presumed under the statute once a positive test result occurs. Because this area involves both a constitutional amendment and later statutory amendments, and because federal law still classifies marijuana as a controlled substance, employers generally should consult counsel before disciplining or declining to hire a registered patient, rather than relying on a summary alone.
Putting a Policy Together
A written policy that names the testing circumstances, identifies the certified lab and confirmation method, builds in MRO review, states the employee's window to explain a result, and protects confidentiality covers most of what Rule 36 and ordinary good practice both expect. For a Rule 36 applicant, reasonable suspicion or post accident program, a CLIA waived instant cup or oral fluid screen paired with lab confirmation on anything non negative is the structure the rule contemplates; ASC's drug test cup collection is built around that same screen then confirm workflow. None of this should be read as a way to avoid a true positive result or to time a test around detection windows; the point of a documented program is accurate detection and a fair, documented review, not evasion in either direction.
Frequently asked questions
Does Arkansas require private employers to drug test?
No. Arkansas's Drug-Free Workplace Program under Ark. Code 11-14-101 to 11-14-112 is voluntary. Employers adopt it to become eligible for a workers compensation premium credit, not because state law otherwise mandates testing for most private jobs.
What is the premium credit for Arkansas's Drug-Free Workplace Program?
The Code of Arkansas Rules section covering the program states the credit shall be at least five percent of the workers compensation premium, unless the state's insurance commissioner determines that rate is actuarially unsound.
Can an Arkansas employer act on a positive marijuana test if the employee has a medical marijuana card?
An employer generally may not discriminate against someone solely for being a registered qualifying patient, but under the amending language to Amendment 98 an employer may be able to act on a documented good faith belief of on the job use or impairment, and may be able to exclude a qualifying patient from a safety sensitive position, as long as a positive test alone is not the sole basis. Employers should confirm current requirements with counsel.
Does a positive drug test end a workers compensation claim in Arkansas?
Not automatically. Arkansas Code 11-9-102 creates a rebuttable presumption that a positive test means the injury was substantially occasioned by the substance, but the presumption can potentially be rebutted with evidence, and the claim is evaluated on its facts rather than closed outright by the test alone.
Can someone fired for failing a drug test collect unemployment in Arkansas?
It depends on the facts. Arkansas Code 11-10-514 disqualifies a claimant discharged for work related misconduct, and the Division of Workforce Services decides case by case whether a specific drug related termination meets that standard, so outcomes vary by claim.
What confirmation testing does Arkansas's Rule 36 program require?
Rule 36 programs call for a confirmation test, such as gas chromatography mass spectrometry or an equivalent method, on any specimen that screens positive, followed by review from a medical review officer before an employer is told the result is a verified positive.
This article is general information about Arkansas law as of the sources cited above, not legal or medical advice. Confirm current statutory text with the Arkansas General Assembly or the relevant state agency, and consult qualified counsel before adopting or enforcing a drug testing policy.
