EDMOND, Okla. — Close to 150,000 Oklahomans held licenses to use medical marijuana as of July 1, according to the Oklahoma Medical Marijuana Authority. As a result employers have had concerns about how to handle legalities in the workplace. Two area attorneys addressing a recent Edmond Area Chamber of Commerce luncheon said the state Legislature took a large step toward clarifying the workplace laws on medical marijuana licensure and use with the Unity Bill it passed earlier this year.
“The Unity Bill ironed out a lot of the questions we had last September,” said Paula Williams, an attorney who spoke along with fellow Gable Gotwals attorney Ellen Adams.
Oklahoma’s medical marijuana laws create a new protected class, Williams said. Employers cannot fire or refuse to hire a person just because they have a medical marijuana license or test positive for marijuana.
The Unity Bill does not require employers to permit marijuana use on their property or during the hours of employment, still permits drug testing, and does not give an employee with a license the right to be under the influence while on the job.
Under the Unity Bill, which takes effect at the end of August, employers may take action against a license holder:
• Who possesses, consumes or is under the influence of marijuana at work or during work hours;
• Whose position involves safety-sensitive job duties; and/or
• If the employer would imminently lose a federal contract (marijuana is still an illegal, Schedule I drug under federal law).
Department of Transportation rules preempt the OMMA, Adams said. So an employer has the power to take action against an employee who tests positive or holds a medical marijuana card if that employee’s activity is regulated by, for example, the FAA or the Federal Motor Carrier Safety Administration.
The Unity Bill’s “safety-sensitive job duties” exception includes any job that includes tasks or duties that the employer believes could affect the safety and health of the employee or others.
That’s a broad range, Williams said.
She said employers should define in their job descriptions what positions are safety-sensitive before Aug. 28.
Examples of safety-sensitive duties described in the Unity Bill include:
• Hazardous materials;
• Motor vehicles, machinery or power tools;
• Work that could result in injury or property damage;
• Infrastructure, including electric, gas and water;
• Oil and natural gas or similar material;
• Patient or child care;
• Firefighting; and
• Carrying a firearm.
The bill also makes medical marijuana smoked or inhaled subject to the Smoking in Public Places and Indoor Workplaces Act.
“So, as business owners, you can prevent customers from smoking marijuana in your business,” Williams said.
Adams said for functions that are not safety-sensitive, the best way to think about medical marijuana to avoid discrimination claims under the OMMA is to think of it like a prescription drug that has impairing effects.
Adams said employers should train leaders to mind what they do and say to prevent harassment of employees with medical marijuana cards.
Avoid criticizing medical marijuana users or license holders with stray remarks like “potheads” or the like, because that could lend more validity to a discrimination claim, she said.
She urged employers to be clear in their policies and consistent in their enforcement, document key facts and reach out to employment attorneys or their human resources department for guidance.
Adams said employers should have a drug policy in place if they are testing employees or applicants.
Oklahoma statute defines “for-cause” standards that determine when and if an employer can drug test an employee.
Those “for-cause” factors include:
• Drugs or alcohol on or about them;
• Conduct or appearance;
• Report of use at work;
• Negative performance patterns;
• Tampering with a drug test; and
• Absenteeism or tardiness.
Adams said it’s more complicated with edibles and vaping to determine if illegal activity is occurring.
“There’s not much you can do if someone is ingesting a brownie in the lunchroom and you don’t know what’s in the brownie,” she said. “But that’s where you just have to manage performance.”
She said managers and supervisors who would be looking for impairment should receive formal training.
“That’s so much better from a defense standpoint if you get sued for wrongfully terminating someone,” she said.
She said if a company has a designated employer representative, that is the person who should communicate with any applicant or employee about a license.
“This has to be kept confidential,” she said. “It’s medical in nature.”