Firing Employees with Medical Marijuana Cards
Under the Oklahoma Medical Marijuana and Patient Protection Act (“OMMPPA”), employers cannot fire an employee or refuse to hire an applicant for having a medical marijuana card, unless either: (1) federal law or federal funding requirements apply, or; (2) the jobs involves safety-sensitive tasks. A job involves safety-sensitive tasks when an employer “reasonably believes” the work duties “could” affect the safety and health of others. The OMMPPA provides a non-exhaustive list of safety-sensitive jobs that involve:
Operating a vehicle, equipment, machinery, or power tools;
Repairing, maintaining, or monitoring equipment, machinery, or manufacturing activities; when injury or property damage might result from a malfunction or disruption;
Flammable, volatile, or combustible components;
Carrying a firearm.
Examples of safety-sensitive jobs:
Medical jobs that work directly with patients (e.g., doctors and nurses),
Law enforcement officers, and
Oklahoma law requires only that employers have a “reasonable” belief that health and safety “could” be affected. There are no guidelines establishing when an employer’s belief is reasonable or for determining when safety could be affected.
Employers may only prohibit use of medical marijuana for safety-sensitive jobs if their belief is: (1) reasonable and; (2) about safety, as opposed to productivity or other separate issues.;
Tip for Employers: Employers should evaluate the job-related tasks for each position and clearly communicate which jobs the employer designated as safety-sensitive. Employers should also reevaluate their findings regularly and provide a copy of any updates to employees. Meanwhile, applicants and employees should ask employers for their drug and alcohol policy regarding medical marijuana. Employees should review their employer’s policy for changes or updates.
Designating jobs as safety-sensitive
Oklahoma enacted OMMPPA to legalize medical marijuana. Employers should keep in mind that the safety-sensitive exception is just that, an exception. Employers should first assume the exception is inapplicable. Employers should then examine the duties performed for each position and the workplace environment.
Workplace Medical Marijuana Restrictions
Although employers cannot forbid employees from using medical marijuana, they may, however, prohibit employees from having or using medical marijuana at or during work. Also, employers may prohibit employees from working while under the influence and are not required to accommodate for an employee’s medical marijuana use. In sum, an employer cannot outright ban medical marijuana use (unless an exception applies), but may prohibit use in any way related to the workplace.
Tips for Employees: Don't bring medical marijuana to work and and only use it at home or other permitted place. Make sure you give yourself plenty of time before you go to work or return from a break.
Under Oklahoma’s Standards for Workplace Drug and Alcohol Testing Act (OSWDA), employers may require job applicants and employees to take drug tests. However, in doing so, employers cannot fire an employee or reject a job applicant for a positive medical marijuana test result unless an exception applies. Employers should not request or require an employee to take a drug test to determine whether an employee used medical marijuana or was under the influence at work. Standard drug tests only show whether a person has a certain level of THC in their system. Urine tests do not screen at a high enough level to show when employees last used medical marijuana. On the other hand, employers are not restricted from other methods “reasonably calculated” to detect the presence of drugs or alcohol such as a breathalyzer. However, employers should keep in mind that they must pay for the costs of a drug test and that alternative tests can be costly. Further, there are limitations to what other drug test results show that make them unreliable for determining when an employee used marijuana. Blood tests, for instance, might show whether an employee used marijuana within a few hours. However, given the time between when the employee might have used marijuana, how regularly the employee uses marijuana, and when then employee gets tested may influence the results. Therefore, drug tests might establish whether an employee violated a prohibition on medical marijuana use but are ineffective for determining whether an employee violated a work restriction.
Employers cannot require employees to take a drug test unless they have a written policy that details their drug test program. The OSWDS specifically requires employers to provide the possible disciplinary actions against employees for refusing or failing a drug test in their policies. Although optional, employers should also state which job positions are subject to drug test requirements, the substances tested, and other information that lets employees and applicants know what to expect.
Employers must provide employees and job applicants with notice and a copy of a new policy or changes at least ten (10) days in advance. The notice and copy of the policy may be given by any of the following methods: personal delivery, mailing to the last address given by the employee or applicant, an email to the employee, posting it on the employer’s website, or putting it in an employee access area.
Tips for Employers:
Review and update your policies regularly and make sure your employees have access to it. Employers should address safety-sensitive positions in the written policy and detail any disciplinary action for violating the policy. Employers should also describe connections between safety-sensitive positions and the drug testing policies.
Consult with an Attorney
Schedule a free consultation at Martuch Law to see whether your employer or business is compliant with the current laws. Martuch Law also can help employers with legal compliance, employment policies and manuals, termination letters and notices, and employee training on workplace conduct.
Under both the OMMPPA and OSWDA (collectively, the “Acts”), employees may receive double their lost wages and attorney fees and costs for winning a lawsuit against their employer. Courts determine lost wages by calculating how much the employee would have made, starting from the date of the violation, had the employer not acted violated the Act(s). To succeed, an employee must show the employer specifically intended to violate either of the Acts. However, employers may recover attorney fees and costs from an employee who unsuccessfully sued an employer. The cost for bringing a lawsuit or defending against one might be more than what the employees lost wages.
Employees should keep a copy of their current employment policy.
Employees should avoid bringing medical marijuana to any location where they work, and only use medical marijuana during off-hours at permitted private locations.
Plenty of time should be given between use and when employees must return to work.
Employers should focus on the duties performed for each position to determine whether a job is safety-sensitive.
Productivity and profits should not be considered by employers.
Employers should clearly address medical marijuana prohibitions or restrictions in their written employment policy and give a copy to each employee.
Employment policies should describe any drug testing requirements and consequences for positive results.
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