Possession, use of marijuana at work still prohibited

Posted by Charles Middleton on 06/28/2018

Q: On Tuesday, Oklahomans approved an initiative to legalize medical marijuana. For employers concerned about how this will impact their efforts to maintain drug-free workplaces, what do they need to know?

A: Misinformation continues to run rampant about what the new law does and doesn't permit as it pertains to employer and employee rights. That's why it's important for employers to start educating their employees now about medical marijuana and the workplace. Make sure to explain your employees that: First, the law only applies to individuals who have a valid medical marijuana license issued by the Oklahoma Department of Health. For everyone else, marijuana use and possession is just as illegal as it was before the election. Second, the possession or use of marijuana at work or during hours of employment still is prohibited, regardless of whether the employee holds a valid license. Third, being impaired or under the influence of marijuana while at work remains strictly forbidden under all circumstances and may lead to termination.

Q: How does this new law impact an employer's ability to conduct drug testing?

A: The law is clear that workers with a valid license can't be disciplined or terminated solely on the basis of a positive drug test — the key word here being “solely.” However, that doesn't mean employers, especially those operating safety-sensitive workplaces, can't or shouldn't drug test an employee — any employee — if their behavior, work performance or conduct demonstrates they may be impaired. Failure to test for alcohol, marijuana or other drugs when probable impairment is observed can lead to other serious consequences, such as injuries, accidents, workplace mistakes and lawsuits.

Q: What steps should employers be taking now to ensure compliance with the new law while also maintaining a safe working environment?

A: As with most workplace issues, managers and supervisors serve as a company's first and most important line of defense since they are the ones who deal directly with employees on a day-to-day basis. Make sure they understand the new law, as they are likely to have heard some of the same misinformation as your workforce. It's also vital that employers invest time in training and developing their supervisors' skills at recognizing and documenting impairment. If a lawsuit is ever filed, that documentation will be key to defending your company's decisions to discipline or terminate an employee. Employers also need to review and update their drug testing programs and any policies that address workplace possession, use or impairment.

Q: Are all employers subject to the new law?

A: No, not all. The law permits employers to discriminate. For example, employers can refuse to hire an applicant or terminate an existing employee 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 the law's anti-discrimination prohibitions.

Q: The law is set to go into effect before the end of July. What should employers expect between now and then?

A: A lot of questions remain, and judging from what has occurred in other states that have legalized medical marijuana, significant legislative, regulatory and legal activity is sure to follow in the coming weeks and months. On the legislative side, the Oklahoma Standards for Workplace Drug and Alcohol Testing Act will need to be amended to comply with the new law. Other legislation affecting the workplace could be enacted if Gov. Fallin follows through on her call for a special session of the Oklahoma Legislature to address issues related to the practical implementation of the new law. In addition, the Oklahoma Department of Health, which is responsible for developing the regulations that will govern the nuts and bolts of the availability and usage of medical marijuana, has announced it will have emergency rules regarding marijuana usage ready for consideration at its July 10 meeting. Finally, because of the inconsistency between this law and federal law, don't be surprised if there's litigation filed arguing that the federal law prohibiting marijuana overrides Oklahoma's new law.

PAULA BURKES, BUSINESS WRITER

Published The Oklahoman, June 28, 2018