by Cara Nicklas
Oklahoma voters recently passed a state question that legalizes medical marijuana. Oklahoma’s medical marijuana laws are codified in Title 63, Chapter 15, § 420A through § 426A, of the Oklahoma statutes. So, what is the impact of the medical marijuana law on the workplace? The short, precise and lawyerly answer is . . . it depends. It depends on many factors, known and unknown. Without settled case law in Oklahoma on many of the issues related to medical marijuana use by employees, employers are left to make judgment calls based on the particular facts in a given situation.
A reasonable interpretation of the Oklahoma statute suggests the impact on employers should be minimal. The law restricts an employer from discriminating based on an employee’s “status” as a medical marijuana license holder or solely on the “results” of a positive drug test by a medical marijuana license holder. The law does not restrict an employer from maintaining a safe and drug-free workplace just as employers have done since before the law passed. Employers may restrict any drug use, legal or illegal, during or before work hours, that would impair the employee’s ability to perform work or would cause a safety risk. A situation analogous to medical marijuana would be the use of pain medication. An employer may prohibit its employees from driving or operating dangerous equipment while under the influence of traditional prescription drugs or medical marijuana. An employer may also take action against a poorly performing employee who may be under the influence of legal or illegal drugs.
Marijuana is still illegal under federal law. Therefore, an employee may not bring marijuana-related discrimination claims under federal statutes, such as the Americans With Disabilities Act. It is uncertain whether claims for disability discrimination can be brought under state law. Assuming a claim may be brought under the Oklahoma Anti-Discrimination Act, any request by an employee for a reasonable accommodation involving use of medical marijuana is fact-specific and would require the employer engage in the interactive process similar to the dialogue and deliberation an employer goes through when an employee depends on prescription drugs that violate an employer’s policies. Whatever reasonable accommodation an employer determines is necessary, it is not required that the employer accommodate an employee’s use of marijuana on the work-premises or during working hours. Additionally, an employer can legally take action against an employee if “failure to do so would cause an employer to imminently lose a monetary or licensing related benefit under Federal law or regulations.” (See 63 O.S. § 425A)
Oklahoma employers already realize how vulnerable they are to discrimination claims. The new medical marijuana law certainly does not minimize the risk of discrimination lawsuits. Nevertheless, the new law should not significantly increase that risk if employers continue to take action against employees that is focused on the employee’s work performance as opposed to the employee’s status.