State Question 788 threatens to alter employers’ drug-free workplaces
Q: State Question 788, entitled Medical Marijuana, is set for vote on the next primary election on June 26. Oklahoma could join the 29 states that have legalized marijuana for medicinal use for persons who qualify under the law. What’s the current law in Oklahoma on the possession and use of marijuana, and workplace testing for marijuana use by employees?
A: The possession and medical use of marijuana is illegal in Oklahoma. In regard to workplace drug and alcohol testing, Oklahoma has one of the most pro-employer statutes of any state in the country. It’s a conservative-based law that allows employers to enact a policy of workplace testing of applicants and employees for drug and alcohol use. Oklahoma employers may require employees to take a drug test following a workplace accident causing injury or property damage, at random, as part of a routine fitness-for-duty exam, and as a follow-up to a rehabilitation program. Employers also may test “for cause,” if they have a reasonable belief that the employee is under the influence of drugs at work (based on, for example, seeing the employee with drugs, an unexplained pattern of absences or tardiness, or employee behavior that suggests impairment).
Q: Why do employers prohibit marijuana use by applicants and employees?
A: Primarily it’s for safety of the employees, customers and general public. It’s well-documented that the impact marijuana use makes on the workplace can be especially alarming as it impairs a person’s attentiveness, motor coordination, reaction time and reduces the perception of time and speed. There are also work performance and job quality issues affected by marijuana use by employees. Most Oklahoma employers have a workplace drug and alcohol testing policy.
Q: What is typically the consequence for an applicant or employee who tests positive for marijuana use under the current law?
A: If an employer has in place a complying workplace drug and alcohol testing policy, and if the applicant tests positive for a prohibited substance (including marijuana), the applicant may be denied employment. If an employee tests positive for a prohibited substance, the employer has the options of discipline, suspension or termination of the employee.
Q: How would this change under the provisions of State Question 788 if it is approved by the voters?
A: The provisions of State Question 788 drastically would change the current law, and employers’ policies, and would alter the employer’s ability to discipline, suspend or terminate an employee who tests positive for marijuana. Under the provisions of State Question 788, an employer wouldn’t be allowed to take any employment action against an applicant or employee who tests positive for marijuana, so long as the applicant or employee has a license to use marijuana, unless the employer would “imminently lose a monetary or licensing benefit under federal law” or if the employee used marijuana on company premises or during work hours.
Q: Since an applicant or employee would have to have a license to benefit from this new law, wouldn’t that protect the employer?
A: No. This is a major difference in the true medical marijuana laws in other states from the provisions of State Question 788. It’s very easy for a person to get a license to use marijuana under the provisions of State Question 788. Most medical marijuana laws in other states have certain qualifying conditions specifically set out in the law for which a license to use marijuana may be obtained, such as cancer, epilepsy or HIV. However, the provisions of State Question 788 state that there “are no qualifying conditions,” and allow a doctor to recommend marijuana for use by a person for any condition that the doctor felt it to be helpful. This would include use for subjective reports of symptoms that can’t be objectively measured, like headaches, muscle pain, menstrual cramps and nausea. Most persons experience these symptoms at one time or another, so this part of the proposed law would open up the ability for almost anyone to obtain a license.
Q: Under State Question 788, are there consequences to a person who possesses or uses marijuana without a license?
A: Not really. Under the proposed law, persons/ applicants/employees caught with unlicensed possession of marijuana, but who “can state a medical condition” would be punished by a fine not exceeding $400. So all the person would have to do is say that he or she had one of the subjective medical conditions like headaches, pain or anxiety, and pay a small fine.
Q: How much marijuana may a license-holder possess pursuant to the provisions of State Question 788?
A: Licensed employees may possess up to three ounces of marijuana on them and eight ounces of marijuana at home. It is reported one ounce of marijuana will make between 28 to 56 “joints” of marijuana, so a person would be allowed to possess up to 616 marijuana joints under the law. The person also may grow and possess six large plants and six seedlings at home. Most states with a medical marijuana law typically allow only the possession of one week’s amount of use, often limited to one ounce.
Q: But isn’t there a need for accommodation via a medical marijuana law for persons with very serious or painful medical conditions?
A: There are certainly many valid serious medical conditions for which treatment with cannabis-related products is well-recognized as being beneficial, such as epilepsy, cancer, HIV and severe nausea. But Oklahoma already has in place a law that allows physicians in Oklahoma to recommend CBD cannabis oil for persons with those conditions to alleviate the symptoms caused by the condition. The difference is that the CBD cannabis oil product doesn’t have a large level of the substance called THC, which is the part of marijuana that causes the “high” effect.