What Oklahoma Employers Should Know

Posted by Charles Middleton on 04/03/2019

The Oklahoma Medical Marijuana Act (SQ 788)

Employers in Oklahoma have been reviewing their approaches to drug testing in the workplace since June, 2018, when Oklahomans voted to pass State Question 788, known as the Oklahoma Medical Marijuana Act (Oklahoma Statutes Title 63, Section 425). Since its passage, Oklahoma employers have been evaluating best practices for handling the use of medical marijuana by employees who have a valid medical marijuana license and hold a safety-sensitive position. Unfortunately, the Medical Marijuana Act does not address this issue, however, it does affect employers by providing limitations on actions that employers can take against medical marijuana license holders, specifically: (i) Oklahoma employers cannot discriminate in hiring, (ii) impose any negative term or condition of employment, or (iii) otherwise penalize an employee based on his/her medical marijuana patient license status solely based on a positive test for marijuana.

Despite the limitations imposed on employers by the Medical Marijuana Act, employers may lawfully take employment action against employees (including medical marijuana patient license holders) for the possession of and/or use of marijuana: (i) on or in company vehicles, equipment or other property; (ii) during work hours, or (iii) at the workplace.

The Unity Bill (House Bill 2612)

On March 14, 2019, Oklahoma Governor Stitt signed into law the Oklahoma Medical Marijuana Use and Patient Protection Act, better known as the “Unity Bill,” which amends Oklahoma’s medical marijuana law. The new law will take effect 90 days after the closure of this legislative session. The Unity Bill includes, in Section 8(h), a bar on employer adverse action (e.g., refusal to hire, discipline, and discharge) based solely on an individual’s status as a medical marijuana licensee. From an employer’s perspective, the most significant amendment to the law is likely the addition of explicit permissions to take medical marijuana use into consideration when the applicant or employee holds, or will hold, a position with safety-sensitive job duties. The list of safety-sensitive jobs include, but are not limited to, the following job duties:

  • Working with or transporting hazardous materials;
  • Operating motor vehicles, other vehicles, equipment, machinery or power tools;
  • Repairing, maintaining or monitoring heavy equipment or manufacturing processes if a malfunction could result in injury or property damage;
  • Firefighting;
  • Operating, maintaining or supervising critical infrastructure such as utility services;
  • Working with volatile or flammable materials;
  • Dispensing pharmaceuticals;
  • Carrying firearms; or
  • Providing direct patient care or direct child care services.

 

 

Under the Influence and Positive Drug Tests

The new law also clarifies that employees can be disciplined when “under the influence” of medical marijuana at work, with or without a valid license. The new law permits employers to take action against workers who come to work impaired. Unfortunately, the new law does not define what “under the influence of medical marijuana” means.  The new law does reference the Oklahoma Standards for Workplace Drug and Alcohol Testing Act, which lists the circumstances in which an employer may conduct “for-cause” testing, and therefore provides some guidance on the types of observations that might lead an employer to believe that an employee was under the influence of marijuana at work. 

The new law defines a “positive drug test for marijuana” as a sample that must produce a result that is at or above the cutoff concentration level established by the U.S. Department of Transportation or Oklahoma law, whichever is lower. A challenge for employers will be the fact that a positive drug test does not necessarily indicate that the person is currently intoxicated from marijuana which can stay in a person’s system for two weeks.

Federal Considerations

Drug testing or employment action that is required by federal law remains entirely unaffected by State law.  Marijuana use remains illegal under the federal Controlled Substances Act of 1970. Federal law DOES NOT recognize medical marijuana. If your workplace is subject to the Drug Free Workplace Act or federal DOT drug testing regulations, those remain in place and applicable to Oklahoma employers. In addition, if an employer is a federal contractor, and would lose a monetary benefit for allowing employees to use medical marijuana, that employer could lawfully terminate employees that use medical marijuana.

Recommendations for Oklahoma Employers

  • Review and amend (as needed) existing workplace drug and alcohol testing policies to (i) ensure consistency with the new law and (ii) give supervisors and managers the right to take lawful disciplinary action when inappropriate marijuana use or possession occurs.  
  • Ensure your workforce understands that impairment or being under the influence of marijuana at work, or during working hours, remains prohibited under all circumstances and could lead to termination.
  • Discipline or terminate employees who possess marijuana in the workplace or during working hours based on established employer policies.
  • Train managers and supervisors to increase their skills at recognizing the behaviors and indicators of employee impairment at work and the importance of maintaining a safe workplace. 
  • Enforce drug testing policies against employees with positive tests for marijuana that do not have valid medical marijuana patient licenses.
  • Enforce policies under federal requirements that disallow performance of covered duties for positive drug tests (including positive marijuana drug tests).
  • Do not ask applicants or employees if they hold a medical marijuana patient license unless they receive a positive test result and the employer has a legitimate reason for the inquiry based on the need to confirm whether the use of marijuana is lawful under the particular circumstances.
  • Determine what positions include safety-sensitive job duties that are exempt from the discrimination prohibitions in the Oklahoma Medical Marijuana Act.
  • Identify positions that are safety-sensitive and document the reasons for concluding that certain tasks or duties could affect the health or safety of the employee or others.

Please contact Stefan at [email protected] if you have any questions.  Stefan serves on the Oklahoma State Council for Human Resource Management and has been a speaker of a local chapter meeting for OCHRS.