Legal Counsel

By J. Blake Johnson

On June 26, Oklahomans will go to the polls to decide the fate of State Question 788. If enacted, the measure would establish the state’s first regulated and taxed medical-marijuana industry.

Such a momentous reform would inevitably have ancillary effects in other areas of law. In particular, some have expressed concern about the impact medical-marijuana reform might have on Oklahoma’s employers.

Some analysts have cautioned that SQ 788 would dramatically upset current employment practices in the state and interfere with the ability of employers to maintain drug-free-workplace policies. To be sure, medical-marijuana reform could change the way many employers interact with those employees licensed by the state to use medical marijuana.

A close reading of SQ 788’s proposed statutory language, and attention to the treatment similar laws have received in the increasing majority of states to have enacted them, however, suggest both that medical-marijuana reform would create relatively modest obligations for Oklahoma businesses and that responsible employers are already familiar with those obligations. In short, SQ 788 probably would not impose impossible burdens on Oklahoma’s employers or eliminate drug-free workplaces.

By its own terms, SQ 788 would extend employment protections to a fairly small number of employees. Those protections are available only to licensed medical-marijuana users. Naturally, most Oklahomans will receive no protection from SQ 788 because most Oklahomans will not be licensed to treat medical ailments with marijuana-based therapies.

In addition to these limitations on qualifying employees, SQ 788 includes outright exemptions for many employers. The proposed law imposes no obligation on any employer that would lose a federal license or monetary benefit if it altered drug-testing policies. Accordingly, those employers that operate under federal-government contracts, or are regulated by federal agencies, such as the transportation industry, would be unaffected by SQ 788. Taken together, these limitations on the reach of SQ 788’s employment protections significantly reduce the burden it would impose on the average employer.

That said, SQ 788 would affect the employment relationship between the average employer and a licensed medical-marijuana user. This affect also would be limited in scope: An employer would be prohibited from taking adverse employment action against a licensed user simply because she is licensed to use marijuana or on the sole basis of a positive test for THC.

Still, the law would expressly authorize an employer to take appropriate action, up to termination, against any employee who possesses or uses marijuana on the job. Employers who suspect an employee to be under the influence of marijuana while at work could still test that employee for THC and pair a failed test with documented observations to build a case for termination. While these changes would likely require many employers to update policies and handbooks, they are unlikely to significantly hamstring employers’ efforts to maintain safe and drug-free workplaces.

Probably, disputes between employers who maintain anti-marijuana policies and employees licensed to use medical marijuana as to the scope of SQ 788’s protections will emerge most commonly where an employee claims that her medical-marijuana treatments are necessitated by a particularly debilitating condition, sufficient to implicate the protections of disability law. Federal employment laws regarding disability unequivocally offer no protection for medical-marijuana treatments, but it is not clear how Oklahoma courts would interpret analogous state-law protections if SQ 788 is enacted.

Responsible employers, however, are already familiar with their limited obligations to reasonably accommodate legitimate disabilities. In other states where employees have successfully challenged employment decisions under medical-marijuana-related employment protections, the courts entertaining such challenges have reiterated and applied these familiar principles.

If Oklahoma courts do apply state-law disability protections, employers encountering a worker who professes a legitimate disability requiring medical-marijuana treatment would be required to make reasonable accommodation of that treatment, but not required to make any accommodation that would pose undue hardship on the operation of the employer’s business.

In order to determine whether a proposed accommodation is reasonable, the employer should engage in an interactive dialogue with the employee. In that dialogue, the employer should try to determine, e.g., whether the employee can competently and safely perform the essential tasks of the job while receiving medical-marijuana treatments, whether the employee can effectively limit use of medical marijuana to circumstances that do not affect job performance, and whether there are equally effective alternative medical treatments that do not violate the employer’s policy.

While SQ 788 does not expressly distinguish “safety-sensitive” positions from others, the nature of the job in question obviously will be relevant to the employer’s analysis. It may be more reasonable to accommodate medical-marijuana use by an employee tasked with data-entry responsibilities than by one tasked with operating a forklift.

In any event, employers routinely undergo this type of deliberation when employees depend on other prescription drugs that would violate the employer’s policies. It seems unlikely, then, that medical-marijuana patients will pose novel challenges to employers accustomed to responsible protocol concerning disabilities in the workplace.

All told, medical-marijuana reform would have some far-reaching implications in the area of employment law, and employers will need to acquaint themselves and update certain workplace policies if SQ 788 is enacted. Because these implications concern a relatively small number of employment relationships, however, they are unlikely to result in widespread employment disputes for the average business.

Because SQ 788 restricts only an employer’s authority to take adverse action on the sole basis of one’s status as a medical-marijuana patient or a positive test for THC, it should not significantly impair employers’ prerogatives to maintain safe and drug-free workplaces. And, where disputes concerning a disabled employee’s use of medical marijuana do emerge, employers will be on reasonably familiar terrain in resolving the same. For these reasons, SQ 788 is unlikely to impose unworkable burdens on Oklahoma’s employers.

Previously published on The Oklahoman, May 27th, 2018

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