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Adam W. Childers of Crowe & Dunlevy.

Medical marijuana law may upend workplace policy

June 14, 2018
The use of medical marijuana could be legal as soon as October if Oklahoma voters approve State Question 788, scheduled for a June 26 vote.

“788, if passed, will have a pretty dramatic impact on the way we conduct drug testing in the workplace,” according to Adam W. Childers, director and shareholder at Crowe & Dunlevy, and co-chair of the firm’s labor and employment practice group.

“There are things you can do to protect yourself in the event 788 passes,” he told the crowd at the 2018 OIPA Annual Meeting.

“A lot of the things I’m going to pinpoint for you could be addressed by regulation, and the Legislature will take a hard look at what tweaks, changes or outright ripping-out of certain provisions may happen.”

If passed, the state has 30 days to make applications available, and 60 days to establish a regulatory office. SQ 788 would allow residents to receive a license to use medicinal marijuana. Out-of-state residents may receive a 30-day temporary license. License holders must be 18 or older, receive a prescription from a board certified physician and pay a $100 application fee ($20 for government health care). SQ788 does not lay out any qualifying medical conditions.

“There are some significant gaps, I believe, in terms of who can prescribe and how it can be prescribed,” he said.

Childers said opposition researchers claim somewhere between 1 percent and 2 percent of the populace will acquire a medical marijuana license.

“The area that, I think, has employment lawyers on high alert and plaintiffs’ lawyers thinking about trotting out the best plaintiff they can, is this issue: 788 essentially says thou shalt not take any adverse action or otherwise discriminate against any person who is a medicinal marijuana holder for purposes of hiring or firing or any other term or condition of employment.”

The statute does not list a remedy, but it does create a protected class, Childers said.

“I believe strongly that come October, one of the first individuals who gets fired for marijuana use who is a medical marijuana card holder is going to make the claim that that is a violation of Oklahoma public policy.

“This is a very aggressive approach by the authors of 788.

“The way the law is written, it says you can’t terminate an individual because of the fact they are a card holder or because of a positive drug test. But nothing within the law says that you cannot terminate that individual for being under the influence of marijuana at the workplace.”

He said it’s likely there will be a shift from testing for marijuana to a focus on corroboration and substantiation of marijuana’s influence on the individual in the workplace.

This is a step back in how employers have dealt with possible on-the-job drug use, he said.

The higher standard of the past was “reasonable suspicion,” which required an eyewitness to the drugs being used, or physical phenomena, or something to tie an employee’s activity to the act of being under the influence.

The current standard is “for cause,” which allows testing after excessive absenteeism or sudden dips in job performance.

“I think we’re going back in time,” Childers said.

“If 788 passes, I think the emphasis will now be, for you in the oil patch, if you’re testing for marijuana, you can still have it in your policy, I just think you’re going to have to be extremely careful about firing someone for a positive marijuana test, if they’re a cardholder, if you don’t have the goods on them.”

He said a positive drug test will likely not grant employers the same ability to terminate an employee that they have today.

“In that situation, I as your defense counsel would say, tell me what they did in the lead-up to that test. Tell me evidence we have that they were under the influence. That will be the safest approach.”

There are safety-sensitive positions that will be particularly worrisome in the oil patch, he said.

He said some states, like Arkansas, disallow certain safety-sensitive positions from their medical marijuana law, but SQ 788 does not, but that may be part of upcoming regulation.

Marijuana remains illegal under federal law, so termination based on use for medical reasons is likely not actionable under the Americans with Disabilities Act, he said. However, Oklahoma does have a state law that outlaws disability discrimination.

“It’s going to be a brave, new world,” Childers said. “I don’t think it means you can’t have a drug-free oil patch. And I don’t think these things are not manageable. But it does mean … you need to be thinking about your policies, you need to be talking to your in-house counsel and your friendly neighborhood employment attorneys. Make sure you’re ready for what comes next.”

OIPA will facilitate one more learning experience, focused on the oil and natural gas industry, on the employment repercussions were State Question 788 to pass.

The seminar will be on June 19 from 9-11 a.m. at the OIPA offices, 400 N.E. Fifth St. in Oklahoma City.

Experts from McAfee & Taft law firm, The Bramlett Agency and OSHA will address the challenges from both legal, insurance and regulatory perspectives.

To learn more about this program and RSVP for this free event, contact Phil Browder at Seating is limited, and will be awarded on a first-come, first-served basis.

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