If State Question 813 Passes and You Have a Medical Card, You Can’t Be Tested for THC at Your Job
Hi. It’s Oklahoma Cannabis Attorney Isaiah Brydie at OK Cannabis Law Office. Let’s discuss State Question 813, Section 10. Medical marijuana license patient employment protections. Number one, no employer/contractor operating a business within the state of Oklahoma shall test any employee/contractor or a potential employee/contractor for THC/medical marijuana, provided the employee/contractor or potential employee/contractor has a valid Oklahoma Medical Marijuana Authority patient license. What this means is you go to get tested for a new job. You show your card. They can’t test you for THC. That simple.
All employers/contractors operating a business within the state of Oklahoma shall treat licensed medical marijuana patients the same as any employee/contractor who is being treated by a conventional physician and are receiving medication from a conventional pharmacy.
No employer/contractor operating within the state of Oklahoma shall terminate or discipline an employee who has a medical marijuana license issued by the Oklahoma Medical Marijuana Authority and/or for having THC in their system. An employer/contractor operating a business within the state of Oklahoma may discipline and/or terminate an employee/contractor for being impaired on the job.
What this means is, we all know that there is a difference between medicated and impaired. It’s difficult to explain, but you know it when you see it. Medicated is perfectly fine; impaired is not. You know when you’re impaired. Everybody else knows when you’re impaired. So just don’t be impaired while you’re at work or while you’re driving, and everything should be good.
No employer/contractor operating a business within the state of Oklahoma shall restrict any employee/contractor who holds an Oklahoma Medical Marijuana Authority license for medicating with medical marijuana, or medical marijuana-infused products during his or her non-working hours. So if you hold a safety-sensitive position, you should still be able to medicate after work and on your weekends or your time off. An employer should have no say so in that.
They don’t have a say so in their employees who drink after work, who medicate with opioids after work, or do illicit drugs after work. They may not like illicit drugs, but they don’t restrict it or deal with it because they generally don’t know. Just because you have THC in your system doesn’t mean that you even medicated the night before, so this kind of protects everybody. All right.
An employer/contractor operating within the state of Oklahoma shall not discriminate against an employee/contractor’s ability to medicate on the job. If the employer/contractor allows employees/contractors to medicate using pharmaceuticals and/or over-the-counter medications, said employer/contractor shall allow a medical marijuana patient licensed by the Oklahoma Medical Marijuana Authority to medicate on the job.
That doesn’t mean that you can spark up a joint on the job or at your desk or in the warehouse where you work. We need to be respectful and mindful that there are other people around. And like I said, there’s a difference between medicating and being impaired, so we’ll talk some more about that later.
An employer/contractor operating within the state of Oklahoma, at their discretion, may not allow medicating on their premises provided said employer/contractor does not allow employees/contractors to medicate with pharmaceuticals on their premises.
However, no employer/contractor in Oklahoma shall prevent an employee/contractor from medicating off of their premises on their break, lunch break, dinner break, and/or break. At no time shall an employer/contractor operating within the state of Oklahoma prevent and/or discipline an employee/contractor who is licensed by the Oklahoma Medical Marijuana Authority from leaving the employer’s/contractor premises to go to another nearby location to medicate.
No employer/contractor operating within the state of Oklahoma shall deny employment, or discriminate against any employee/contractor or potential employee/contractor who has a medical marijuana license issued by the Oklahoma Medical Marijuana Authority.
No employer/contractor operating within the state of Oklahoma shall limit any privileges, rights, immunities, or defenses of a medical marijuana patient licensed by the Oklahoma Medical Marijuana Authority.
You have the same rights, immunities, defenses, and privileges as any other employee/contractor. All right. A safety-sensitive job is any job that includes tasks or duties that the employer/contractor can articulate clearly and concisely and show the position is a dangerous position and can provide evidence that medicating while on the job could affect the safety and health of the employee/contractor performing the task or others.
We all know that being a police officer is a safety-sensitive position. We all know that being a firefighter is a safety-sensitive position. However, what police officer does and a firefighter does on their off-duty times is between them and their physician. If they have a recommendation from their physician, they should be able to medicate outside of those positions when they’re not working. That doesn’t mean that they can medicate when they’re working.
However, that doesn’t mean that because they have THC in their system that they’re impaired. We all know that. So the employer will have to be able to prove that the position is a safety-sensitive position.
Being a CPA, in my opinion, if they are just medicating and not impaired, is not a safety-sensitive position. That’s just my opinion. That’s not a legal opinion. But let’s just use some common sense. I’ve seen some CPA businesses say that they’re safety sensitive. I’ve seen others that say they’re not. So they would have to prove that the employee … They would have to approve that the job could affect the safety and health of the employee/contractor performing the task or others. So we’ll see how it goes.
Next, except as otherwise specifically provided by law, it shall be unlawful for any employer/contractor operating a business within the state of Oklahoma to fail or refuse to hire a prospective employee who holds a medical marijuana license issued by the Oklahoma Medical Marijuana Authority because the prospective employee who submitted to a screening test indicates the presence of THC/marijuana.
It shall be unlawful for any employer/contractor operating a business within the state of Oklahoma to terminate any employee/contractor who holds a medical marijuana license issued by the OMMA because the employee/contractor submitted to a screening test that indicates the presence of THC/marijuana.
Just because you pop hot doesn’t mean that they can terminate you or not hire you. Now, they can terminate you for other reasons. They can not hire you for other reasons. But they can’t terminate or not hire you for these reasons.
The provisions of Section 10, medical marijuana license patient employment protections, 12A, and B shall also apply to the employee/contractor/prospective employee/prospective contractor who is applying for or holding a safety-sensitive position.
The presence of marijuana in an employee/contractor/prospective employee’s/prospective contractor’s system does not ascertain whether the employee/contractor/prospective employee/contractor is impaired. The employer/contractor shall have to prove impairment at the time of the test.
Meaning, if you get hurt on the job, they have to prove that you were impaired at the time you were injured. That’s not by having THC in your system when you test. They have to prove that you were impaired and a danger to yourself and others.
If an employer/contractor operating a business within the state of Oklahoma requires an employee/contractor to submit to a drug screening test, random or otherwise, the employee/contractor shall have the right to present their medical marijuana license to the tester, and the medical marijuana cardholder shall not be tested for THC/marijuana.
The provisions of this section do not apply to the extent that they are inconsistent or otherwise in conflict with the provisions of the employment contract or collective bargaining agreement. So if you are under a contract with your employer or you are a union member, this may not apply to you. That’s something you will have to check with your contract, your employment contract, and/or your bargaining agreement.
To the extent that they are inconsistent or otherwise in conflict with the provisions of federal law … We all know that this program, the medical marijuana program in Oklahoma, is federally illegal, at least for now. And so if you’re a federal worker, this may not apply to you. It could, but it may not. Also, to a position of employment funded by a federal grant. So it just depends on how your federal grant is.
As used in this section, screening tests shall mean a test of a person’s blood, urine, hair, saliva, or nail bed to detect the general presence of a controlled substance or any other drug. No additional rules and/or regulations shall be enacted outside of this article. If you have any questions, call (918) 932-2879 to speak to a Tulsa medical marijuana attorney.