As you probably know, Oklahoma legalized medical marijuana in June 2018. We told you about the impact for employers in our newsletter last summer.

What’s New?

Since then, it became clear that the law was not particularly well-written and had some issues. To address many of those concerns, Governor Stitt signed the Oklahoma Medical Marijuana & Patient Protection Act on March 14, 2019. Called the Unity Bill (because it included input from a variety of people, including medical marijuana advocates and other groups), it is set to take effect at the end of August. The current law remains in effect until that time.

The Unity Bill adds some additional protections for employers. Most importantly, employers may refuse to hire applicants for safety-sensitive positions and discipline or discharge existing employees who work in safety-sensitive positions if they test positive for marijuana, even if they hold a valid medical marijuana license. Remember that the old law contains no such exception – employers could not take adverse employment action against the holder of a medical marijuana license solely based upon the results of a drug test showing positive for marijuana or its components, with no exceptions.

This part of the new law reads:

No employer may refuse to hire, discipline, discharge, or otherwise penalize an applicant or employee solely on the basis of a positive test for marijuana components or metabolites, unless:

a. the applicant or employee is not in possession of a valid medical marijuana license,
b. the licensee possesses, consumes, or is under the influence of medical marijuana or medical marijuana product while at the place of employment or during the fulfillment of employment obligations, or
c. the position is one involving safety-sensitive job duties.

What is Safety-Sensitive?

The Unity Bill defines safety-sensitive as any job that includes tasks or duties that the employer reasonably believes could affect the safety and health of the employee performing the task or others including, but not limited to, any of the following:

a. the handling, packaging, processing, storage, disposal, or transport of hazardous materials
b. the operation of a motor vehicle, other vehicle, equipment, machinery, or power tools
c. repairing, maintaining or monitoring the performance or operation of any equipment, machinery, or manufacturing process, the malfunction or disruption of which could result in injury or property damage
d. performing firefighting duties
e. the operation, maintenance, or oversight of critical services and infrastructure including, but not limited to, electric, gas, and water utilities, power generation, or distribution
f. the extraction, compression, processing, manufacturing, handling, packaging, storage, disposal, treatment or transport of potentially volatile, flammable, combustible materials, elements, chemicals or any other highly regulated component
g. dispensing pharmaceuticals
h. carrying a firearm, or
i. direct patient care or direct child care

What Can Employers Do?

This means that employers have discretion to decide what positions include safety-sensitive job duties. The provided list includes only examples of duties that “could affect the safety and health of the employee performing the task or others.” Employers should identify the job positions they believe fall into this category and document it accordingly (in written job descriptions and elsewhere) to justify the safety-sensitive classification.

The ultimate result of the new law is that employers can discipline employees in safety-sensitive positions (and refuse to hire applicants for those positions) for positive marijuana drug test results even if the individual is a medical marijuana license holder. Employers’ drug testing policies should clarify that employees in safety-sensitive positions may be held to a different standard than other positions. If an employee (or applicant) is not in a safety-sensitive job, then the employer cannot terminate him solely for a positive drug test for marijuana use outside of work if the employee or applicant holds a valid medical marijuana license.

On its face, the new law also appears to allow employers to discipline any employee (safety-sensitive or otherwise) for positive marijuana drug test results if the employee “possesses, consumes, or is under the influence of medical marijuana or medical marijuana product while at the place of employment or during the fulfillment of employment obligations.” But the science of marijuana testing may not have caught up with the language of the law quite yet; a positive drug test result may or may not indicate present impairment on-the-job. Employers should make sure their written policies prohibit employees from showing up to work under the influence of medical marijuana (in addition to using or possessing medical marijuana while at their place of employment or during the fulfillment of employment obligations), but recognize that it is unclear how persuasive a positive marijuana drug test might be to prove actual impairment in any particular case. Employers should re ly on other observable indicators of impairment when they believe someone is unable to safely and sufficiently perform their job duties.

A Few Other Points

As before, employers may continue to prohibit employees from using or possessing marijuana while on the employer’s property or premises or during the hours of employment. But the Unity Bill specified that employers are not required to permit or accommodate employees who are under the influence of medical marijuana when they show up.

In addition, employers are still prohibited from discriminating against a person because of his/her status as a medical marijuana license holder. Our advice is that employers shouldn’t even ask employees or applicants if they have a medical marijuana license.

By Rebecca D. Bullard, rbullard@dsda.com