Medical marijuana law creates employment protections as well as unresolved legal questions

Posted by Charles Middleton on 05/18/2018

Q: Next month, Oklahomans go to the polls to vote on the legalization of medical marijuana. If approved, how will that impact the workplace?

A: While State Question 788 does not allow employees who hold a valid medical marijuana license to possess or consume the substance in any form while at work or “during the hours of employment,” it does provide them with a number of employment protections. Very specifically, an employer may not discriminate against employees simply because they have a license. Furthermore, they cannot discipline or terminate employees based solely on a positive drug test.

Q: Are there any exceptions to this prohibition on discrimination?

A: Yes. The law permits employers to discriminate in cases where they would “imminently lose a monetary or licensing-related benefit under federal law or regulations.” For example, federal contractors and subcontractors, military defense employers, and companies subject to U.S. Department of Transportation drug-testing regulations would be exempted from providing these employment protections. Those employers may continue to conduct drug testing as required by the applicable federal workplace drug testing law.

Q: What does federal law have to say about state laws legalizing marijuana?

A: Under the federal Controlled Substance Act, marijuana is classified as a Schedule I drug, regardless of whether it's being used for medicinal or recreational purposes. Until recently, U.S. Attorneys were given discretion in prosecuting marijuana-related offenses. However, that changed this year when the U.S. Department of Justice, under Attorney General Jeff Sessions, announced its increased willingness to prosecute such offenses. Currently, 30 states and the District of Columbia have legalized marijuana in some form, creating a murky haze of both legal questions and potential risks for employees and employers alike. In preparing our clients for this possible new change in Oklahoma law, we've researched individual state laws, as well as the various issues that have arisen in each state. Outcomes have been inconsistent: while many states presume that federal law pre-empts state law on this issue, courts in some states have ruled that their state's medical marijuana law was not pre-empted by the Controlled Substance Act.

Q: Doesn't this proposed new law conflict with Oklahoma law regarding workplace drug testing?

A: It absolutely does. The Oklahoma Standards for Workplace Drug and Alcohol Testing Act currently allows employers to discipline or terminate employees for testing positive for marijuana, so it will be necessary for the Oklahoma Legislature to amend the Act to make it consistent with and address the new law. While SQ 788, if passed, will prohibit employers from disciplining or terminating licensed employees solely on the basis on a positive drug test for marijuana, employers still retain the right to take action against those who are impaired or under the influence while working. Therefore, it will be important for employers to focus on specific employee behaviors — such as conduct, performance, or other activities that put themselves or others at risk — rather than just test results. And documenting such behavior or impairment will be key in defending against any lawsuits that may be filed by employees.

Q: What do you recommend Oklahoma employers do to prepare for the possible legalization of medical marijuana?

A: It's important to remember that SQ 788, if approved by Oklahoma voters on June 26, will go into effect just 30 days later. Before that happens, employers should update their current drug and alcohol policies, communicate the changes to their workforce, and train their managers and supervisors on how the new law and policy works. Special attention should be given to training supervisors on how to spot and document signs of impairment in the workplace. Multistate employers need to keep in mind that medical marijuana laws vary by state, so a one-size-fits-all drug and alcohol testing policy will not work. If in doubt, consult qualified legal counsel who is well versed in complying with various state laws. Employers who wish to know more can listen to a free webinar on the topic at www.mcafeetaft.com/marijuana.

Q: If SQ 788 passes, will Oklahoma's Legislature take any action?

A: At the Capitol, there have been discussions about revamping Oklahoma's workplace drug testing and discrimination laws to address the possible advent of legalizing medical marijuana. Also, passage of SQ 788 will require the Department of Health to issue regulations controlling the dispensing and use of medical marijuana. With the passage of SQ 788, Oklahoma employers should anticipate a flurry of legislative and regulatory activity that will shape how Oklahoma employers address medical marijuana challenges in the workplace.

PAULA BURKES, BUSINESS WRITER

Published The Oklahoma, May 18, 2018