Evan Way is an associate attorney with Crowe & Dunlevy and a member of its Cannabis Industry Practice Group. He recently took time to answer Oklahoma Gazette’s questions about State Question 788’s legalization of medical marijuana and how it pertains to employment law.
Oklahoma Gazette: How did the law treat a marijuana user before SQ788?
Evan Way: Before the passage of SQ788, medicinal or recreational marijuana use was a criminal offense. Now, medical marijuana use by a licensed patient is legal under Oklahoma law. An unlicensed marijuana user is still subject to criminal action, although many Oklahoma jurisdictions have reduced unlicensed use to a misdemeanor offense. To be clear, SQ788 in no way affects federal law, which still criminalizes the use, possession and sale of marijuana.
OKG: What protections did SQ788 provide? What rights did it change for employers?
Way: SQ788 provides protections for physicians, patients and employers. Physicians cannot be unduly stigmatized for recommending medical marijuana use. A licensed patient cannot have his or her parental rights altered, lease terminated, school enrollment denied, state license revoked or have restrictions placed on qualifying for medical care (to include being listed on the organ transplant list) solely because of medical marijuana use. Licensed patients also receive numerous employment protections. But these patient protections do have limits. For example, a landlord can terminate a licensed patient’s lease if he or she fails to pay on time or otherwise violates the lease. And an employer can still terminate a licensed medical marijuana patient/employee for failing to meet employment expectations. These protections simply prevent action against a licensed patient solely due to that individual’s status as a licensed patient.
Employers also receive protections under SQ788. If an employer, e.g., a federal contractor, would lose a monetary benefit for allowing employees to use medical marijuana, that employer could lawfully terminate employees that use medical marijuana. This employer protection is very narrow, however, and most likely won’t apply to many Oklahoma employers. But an employer still has the ability to make employment decisions — to include termination — that are not solely related to an employee’s status as a medical marijuana patient. Just like an employer could prohibit heavy equipment use by an employee taking a narcotics prescription during work hours or even before work if the effect of that drug continues during work hours, it may also prohibit a medical marijuana patient from operating heavy equipment while under the influence of THC. There most likely will be legislation this session that more clearly defines employers’ rights, including how to handle safety-sensitive positions.
“What is known at this point is that the presence of an intoxicating substance in an employee’s body is no longer a bar to workers’ compensation benefits in Oklahoma.” — Evan Way
OKG: How did medical marijuana change workers’ compensation law?
Way: Every state that has legalized medical marijuana has enacted different laws that implement, oversee and regulate medical marijuana. And although very similar, the workers’ compensation system also differs from state to state. Employers are, thus, in a difficult position to determine how this emerging law will apply to them. New Mexico was the first to require an employer to reimburse an injured employee for medical marijuana treatment. New Jersey, Minnesota and Maine have made similar rulings. But other states have taken the opposite position because marijuana remains federally illegal. Oklahoma’s approach to medical marijuana for workers’ compensation claims remains to be seen. What is known at this point is that the presence of an intoxicating substance in an employee’s body is no longer a bar to workers’ compensation benefits in Oklahoma.
OKG: Should employers be concerned about SQ788, and what can employers do to maintain safe workplaces while adhering to state law? What advice would you give an employer who suspects an employee is impaired on the job? How does SQ788 affect the average employee?
Way: An Oklahoma Court of Civil Appeals opinion last fall made it clear that presence of an intoxicating substance in an employee’s body doesn’t necessarily mean that the individual was intoxicated when a workplace injury occurred. This undoubtedly presents much uncertainty for employers because there isn’t a bright-line test (like a blood-alcohol level) for THC impairment. But employers can continue to use current policies and procedures to detect impairment. Keep in mind that tests often confirm impairment [but do] not serve as a screening test before an employee begins his or her workday. If an employee appears impaired — regardless of the source — an employer should follow its internal policies regarding workplace impairment.
OKG: What kinds of tests are available, and when can an employer demand an employee take one?
Way: There are many tests (hair follicle, nail, blood, urine, etc.) that can detect THC or CBD in an individual’s body, and most employers can generally demand employee drug testing. As mentioned above, the issue with current tests is that Oklahoma has not established a threshold for impairment. Until this is done, employers should rely on current policies and procedures regarding impairment.
OKG: Is SQ788 going to prompt employee discrimination litigation? How many employment relationships are affected by SQ788?
Way: Generally speaking, when employees are granted additional workplace rights, there is an initial increase in litigation while the contours of that right are defined. Unfortunately for employers, this financial burden often falls on them as a consequence of our judicial system. Most, if not all, employers are willing to adapt their policies and procedures to comply with medical marijuana legislation. But there’s no silver bullet to compliance. Every employment relationship will face different obstacles. And what works for one employer won’t necessarily work for another. The best approach is for employers to work with their human resources, legal counsel, medical resource officer and other applicable offices to implement policies and procedures that work best for their particular employment relationship.