As previously reported, Oklahoma's medical marijuana laws dictate that an employer cannot discriminate against a person in hiring or termination, or otherwise penalize a person due to the person's status as a medical marijuana holder or as a result of a positive drug test. So now that Oklahoma has gone green and created such limitations on employers, how will that impact employer drug testing policies?
To put it bluntly, nothing in the new law seems to specifically prevent or impact the general testing statute which allows for random testing. As an initial matter, to have any protections under the new law, an employee needs to have a medical marijuana license; thus, without the license employees are not protected.
Second, while the law states that an employee cannot be terminated simply because he or she possesses a medical marijuana card or because he or she tests positive for marijuana in a drug screen, the law does not prevent employers from taking into consideration other factors such as any negligent work behavior or bad performance, any injuries the employee has caused in the workplace, or what type of work is being performed. With that said, employers who choose to follow this path, are in for a hazy ride. If employers refuse to hire an applicant or choose to terminate or otherwise penalize a pot-licensed employee, the employer puts itself in the difficult position of having to prove that the employer is not relying solely on the test results when making employment decisions.
Third, as previously reported, while the new law provides a carve out for employers – an employer may take action against an employee if it stands to lose a monetary or licensing benefit as a result of employee usage, if federal laws prohibit use of drugs ("DOT"), and if the license holder "uses" or "possesses" marijuana while at work or during hours of employment – the challenge with this statute and other similar ones is proving "use" while at work. Use is difficult to prove because drug tests do not show when employees use marijuana or are under the influence of marijuana. It's possible that a drug test could show up positive but be as a result of an employee's off-duty use of marijuana.
Lastly, nothing in the law discusses whether a collective bargaining agreement may waive any rights in the new law. The Oklahoma general testing law does expressly state that any CBA must have basic protections. However, it is still unclear whether a Union can waive the protections in the law in a CBA.
Accordingly, while nothing in the new law seems to prevent or impact the general testing statute, employers should review their drug-testing policies to ensure compliance with the new laws. And of course, marijuana remains an illegal drug under federal law—so there may be potential preemption issues when it comes to testing.
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