Oklahoma’s bill to protect their work force was put into effect this past week. The “Unity Bill”, or House Bill 2612, went through OK’s legislature and was signed by Governor Stitt on March 14, 2019, and went into effect this past week on August 29, 2019. The breadth of this bill covers licenses for businesses, licenses for patients, the use and sale of medical marijuana, etc. However, one of the most important issues it covers is how employers are to handle current and future employees who have a license to use medical marijuana.
Section 8 of the bill protects individual consumer’s rights to use, purchase, and possess medical marijuana without it effecting their eligibility for public assistance programs, possession of a firearm, and obtaining or retaining employment. Specifically, within Section 8, subsections H and I set forth the new rules regulating employees and employers with a medicinal marijuana license.
Subsection H states that no employer may discriminate or otherwise fire, refuse to hire, or discipline an employee because of their possession of a medical marijuana license. It even goes further to protect individuals who possess a medical marijuana license and exercise their right to smoke, vape or consume how they choose, but he or she tests positive for marijuana on a drug screening. The Unity Bill denies employers the ability to fire, refuse to hire, or discriminate against an individual for testing positive for marijuana if they posses the requisite license. However, an employer may refuse to hire or take adverse action against an employee if he or she tests positive and either; (1) does not possess a medicinal marijuana license; (2) the employee has a license but is under the influence of marijuana while at the workplace or during a work obligation; or (3) the employees position is one that the legislature declared to have “safety-sensitive” job duties.
The legislature set forth a non-exhaustive list of which “safety sensitive” jobs will not allow the use of medicinal marijuana regardless of an individual’s possession of a license. The list includes:
“(a.) the handling, packaging, processing, storage, disposal or transport of hazardous materials, (b.) the operation of a motor vehicle, other vehicle, equipment, machinery or power tools, (c.) repairing, maintaining or monitoring the performance or operation of any equipment, machinery or manufacturing process, the malfunction or disruption of which could result in injury or property damage, (d.) performing firefighting duties, (e.) the operation, maintenance or oversight of critical services and infrastructure including, but not limited to, electric, gas, and water utilities, power generation or distribution, (f.) the extraction, compression, processing, manufacturing, handling, packaging, storage, disposal, treatment or transport of potentially volatile, flammable, combustible materials, elements, chemicals or any other highly regulated component, (g.) dispensing pharmaceuticals, (h.) carrying a firearm, or (i.) direct patient care or direct child care[.]”
If you are an employer, it seems like this bill only protects employees or applicants. However, this bill does give employers some say. Subsection I gives employers the ability to decide whether or not an employee may use medical marijuana on the premise of the workplace or during the hours of the workday, if an employee works from home or is at another job site, etc. It also does not require employers to reimburse an employee for expenses associated with medical marijuana.
Another important aspect the bill leaves discretion to the employer is how to handle an employee that may be “under the influence” at the workplace. The bill does not give a test or way of determining this answer, so it is up to the employers to learn or even get training to be able to sniff out someone who is under the influence at work. Since this bill gives employees remedies or the right to take action if wrongly disciplined, a business or place of employment should take the correct steps to avoid a claim being entered against them for a wrongful action due to this “under the influence” discretion. Certain providers are starting to do training courses to educate supervisors of the signs and symptoms of substance abuse. An example one is found here. This could help employers avoid liability because it gives some sort of good faith reason for their disciplinary action.
This act is similar to the acts in place in Arkansas and New Mexico. However, as it is for any new law, it will be interesting to see what changes the Oklahoma legislature may make, and how a court will enforce this act when challenged by employers or employees. It is important for employees to not use medical marijuana unless they obtain an official license, and for employers to update their policies to be in alignment with this new act.