SQ 788, Urinalysis, and the ADA

By Lawrence Pasternack

Analysts have offered differing opinions as to State Question 788’s impact on the workplace.

J. Blake Johnson, has recently argued in The Oklahoman 
that SQ 788 would not significantly affect current workplace policies.

In contrast, Robert Funk, founder of Express Employment Professionals, has asserted in The Journal Record that SQ 788 “prohibit[s] an employer from having a drug-free workplace.” Who is correct?

First, we may look at the language of SQ 788 itself. According to Section 6, Paragraph B, an employer may not take any adverse employment action based solely upon an employee’s “status as a medical marijuana license holder” or “against the holder of a medical marijuana license solely based upon … the results of a drug test showing positive for marijuana or its components.”

However, SQ 788 does allow employers to “take action against a holder of a medical marijuana license holder [sic] if the holder uses or possesses marijuana while in the holder’s place of employment or during the hours of employment.” Most importantly, regardless of the employee’s status as a medical marijuana card holder, employers will be able to take action against medical marijuana licensees if they use marijuana during work hours or if their workplace performance is affected by use during or outside of work. Moreover, nothing in SQ 788 prevents employers from taking action against unlicensed users.

Second, employers need to be aware that with the federal and state legalization of “industrial hemp” (cannabis with under 0.3 percent THC), employees can test positive for THC even if they are using legal products. Most workplace urine screens have a THC cutoff of either 50ng/ml or 20ng/ml. However, according to the Journal of Analytic Toxicology (July/August 1997), consumers of hemp-based products have been shown to have as much as 87ng/ml of THC in their system. In fact, current online CBD discussion boards are replete with postings from employees who have been terminated for positive THC screens, despite using only legal cannabis products (see: sec. 7606 of the Agricultural Act of 2014 and the DEA’s Internal Directive, May 22, 2018).

Given the growing popularity of CBD and other legal cannabis products, employers need to recognize that employees using nothing other than legal products can test positive for THC. Moreover, standard workplace urinalysis is unable to distinguish between active states of intoxication versus use as far back as one month prior. Hence, an employee who uses marijuana while vacationing in one of the 10 states where recreational use is legal could test positive up to a month later.

Third, while employers may worry that the legalization of medical marijuana may provide an employee with a disability protection, this has already been adjudicated through federal circuit courts: The American Disabilities Act does not provide any protections for marijuana use, even if legal under state law (James v. City of Costa Mesa). Likewise, SQ 788 does not introduce any disability protection for employees who are under the influence of marijuana at work, and courts around the nation have upheld the right of employers to terminate employees who engage in state-legal, but federally illegal activities (Coats v. Dish Network).

Lastly, employers are likely aware that there is a large illegal marijuana market in Oklahoma. According to the National Survey on Drug Use, 6.07 percent of Oklahomans, roughly 240,000, use marijuana monthly, and 11.19 percent, roughly 440,000, have used it in the past year.

If SQ 788 passes, we may expect enrollment to follow national patterns. Currently, across the 30 legal states, enrollment averages 1.4 percent of their population, which would translate to roughly 56,000 Oklahomans. Maryland, whose program is relatively new and likewise has “no qualifying conditions” in their medical marijuana legislation, has a current enrollment of only 0.58 percent. States that have had medical marijuana programs for roughly 20 years, such as California (22 years) and Maine (19 years), have enrollments just above 3 percent.

While the medical marijuana legislation in these states includes qualifying conditions, they nevertheless license use for “any chronic or persistent medical symptom that substantially limits the ability of the person to conduct one or more major life activities.” Hence, even if Oklahoma eventually reaches the enrollment seen in these programs, that will still translate to only about 120,000 enrollees, still a fraction of the number of current marijuana users in our state.

No doubt, if SQ 788 passes, employers will have to review some of their current workplace policies. But such review may now already be warranted given the increasingly widespread use of CBD and other legal cannabis-based products.

Lawrence Pasternack is a professor at Oklahoma State University. The views expressed here do not necessarily reflect those of OSU.

Previously published in The Journal Record.


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