The following is language from Oklahoma’s SQ 788 (as it pertains to the workplace):
B. Unless a failure to do so would cause an employer to imminently lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either:
1. The person's status as a medical marijuana license holder; or
2. Employers may take action against a holder of a medical marijuana license holder if the holder uses or possesses marijuana while in the holder's place of employment or during the hours of employment. Employers may not take action against the holder of a medical marijuana license solely based upon the status of an employee as a medical marijuana license holder or the results of a drug test showing positive for marijuana or its components.
What does this mean as a practical matter?
An employer cannot make an employment decision (to hire, fire, promote) based solely upon the person’s status of having a medical marijuana use license, or based solely upon a positive test for marijuana use. The exception is an employer that has federal contracts which would prohibit it from hiring a medical marijuana user, as marijuana remains a Class 1 narcotic under federal law. An employer also cannot fire an employee solely because of a positive test result for marijuana use.
In light of these conditions, what can employers do to enforce a “drug free” work environment?
If an employee has marijuana in his/her possession, and/or is caught using marijuana at the workplace, and there is a clear policy in place prohibiting such possession and/or use, that employer should be able to discipline the employee, up to and including termination. The law is not crystal clear on this issue, but based upon past employment law basics, this should hold true.
However, the more likely scenario will be that the employer can only suspect that an employee is using marijuana in the workplace, and that his/her judgment is impaired as a result of that use. Employers who suspect an employee to be under the influence of marijuana while at work should test that employee for THC and document observations of impairment, to build a case for disciplinary action, up to and including termination.
How does SQ 788 interact with federal and state disability laws?
Federal ADA: Federal employment laws regarding disabilities do not protect medical-marijuana licensees.
Oklahoma disability statutes: It is not clear how Oklahoma courts will interpret state law disability protections in the context of SQ 788.
The Oklahoma Anti-Discrimination Act prohibits employment practices that discriminate based on disability or genetic test results. An individual with a disability may include someone who is a as a medical marijuana license holder. It depends upon the situation. Which would mean that, as the employer, a “reasonable accommodation” to the licensee may be necessary, unless it would impose an “undue hardship” on the employer.
There is a lot of case law regarding what is a “reasonable accommodation” and an “undue hardship” under the federal ADA, which would provide guidance for what an Oklahoma court would do. So, this is not entirely new territory.
Employers should err on the side of caution and treat information regarding an employee’s status as a medical marijuana license holder the same as any other confidential health information.
CONTACT CUTTER LAW FIRM PLC to review your Employee Handbook and Policies and Procedures to make sure your business is ready for these changes.