As more states approve marijuana’s medical use, employers must understand the significant legal developments and how they affect the workplace. New Mexico and Oklahoma have recently passed medical marijuana laws with provisions that provide employment protections for applicants and employees. Below is a discussion of those protections, several of which are the types of protections likely to be incorporated into other states’ laws in the future.
New Mexico has had a medical marijuana law in place since 2007, but recently on April 4, 2019, the Lynn and Erin Compassionate Use Act (the “Act”) was amended to include new protections for job applicants and employees. Under the law, employers are now prohibited from taking any “adverse employment action against an applicant or an employee based on conduct allowed under” the Act, including declining to hire, discharging, or taking any other adverse action against an individual because he or she is using medical marijuana or has received a recommendation for such use by a provider.
However, several exceptions to the law apply. Specifically, the employment protections do not apply to:
- employers that could lose monetary or licensing-related benefits under federal law or federal regulations for hiring or employing individuals who use marijuana or test positive for marijuana.
- employees who work in a “safety-sensitive position,” defined as a “position in which performance by a person under the influence of drugs or alcohol would constitute an immediate or direct threat of injury or death to that person or another.”
- employees who use or are impaired by medical marijuana while working or on the premises of employment or during the hours of employment.
The law also expands the definition of a “debilitating medical condition” for which medical marijuana may be recommended. Some of the new medical conditions include Parkinson’s disease, posttraumatic stress disorder, severe chronic pain, and severe anorexia or cachexia. Employees with these medical conditions are now covered by the law and may be authorized to use medical marijuana.
Presumably, it is permissible for employers to take adverse employment actions against applicants or employees if the individual tests positive and one or more of these exceptions is met. However, as to the third exception, the law unfortunately provides no guidance as to what it means for an employee to be “impaired by” marijuana and presumably leaves it to employers and their medical officers to determine whether “impairment” is indicated via a positive test or from other evidence.
In Oklahoma, the Oklahoma Medical Marijuana and Patient Protection Act, more commonly called the “Unity Bill,” was recently passed. In creating the Unity Bill, lawmakers sought to clarify the Oklahoma Medical Marijuana Act (OMMA), which passed in the summer of 2018 and was found by many to be a fairly lenient medical marijuana law compared to other states’ medical marijuana laws, in part because it included protections for employees and applicants with few limitations.
Under the Unity Bill, employers are still prohibited from taking action against applicants or employees solely on the basis of their status as a medical marijuana license holder. However, with respect to positive drug test results, the law now provides that an employer may not refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of a positive drug test result for marijuana, unless: (1) the applicant or employee is not in possession of a valid medical marijuana license; (2) the applicant or employee possesses, consumes or is under the influence of medical marijuana or medical marijuana product while at the place of employment or during the fulfillment of employment obligations; or (3) the position is one involving safety-sensitive job duties. Thus, like the New Mexico law, the new Oklahoma law states that employers can now lawfully refuse to hire applicants for safety-sensitive jobs or to discipline or discharge employees who work in safety-sensitive jobs if they test positive for marijuana, even if they have a valid license to use medical marijuana. This is true even if the position is not covered by U.S. Department of Transportation regulations. According to the bill, safety-sensitive jobs are those with “tasks or duties that the employer reasonably believes could affect the safety and health of the employee . . . or others.” The following non-exhaustive list of job duties is included in the law:
- the handling, packaging, processing, storage, disposal or transport of hazardous materials,
- the operation of a motor vehicle, other vehicle, equipment, machinery or power tools,
- 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,
- performing firefighting duties,
- the operation, maintenance or oversight of critical services and infrastructure including, but not limited to, electric, gas, and water utilities, power generation or distribution,
- 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,
- dispensing pharmaceuticals,
- carrying a firearm, or
- direct patient care or direct child care.
The new law also gives employers the discretion to decide what positions include safety-sensitive job duties that are exempt from the anti-discrimination prohibitions of OMMA. However, an employer’s decision to classify a position as safety sensitive must be reasonable.
Additionally, the Unity Bill defines a “positive test for marijuana components or metabolites” as “a result that is at or above the cutoff concentration level established by the United States Department of Transportation or Oklahoma law regarding being under the influence, whichever is lower.”
The Unity Bill also provides a legal remedy for applicants and employees. It clarifies that any aggrieved applicant or employee has an exclusive remedy for a willful violation of the law under the Oklahoma Standards for Workplace Drug and Alcohol Testing Act.
The Bottom Line for Employers
As discussed above, there is a trend to include employment protections for employees and applicants as medical marijuana laws are passed and/or amended. However, importantly, many of these laws now address employers’ concerns about workplace safety so that employers can refuse to hire or take an adverse action against an employee or applicant solely because he/she tested positive for marijuana if that individual is applying for or working in a safety sensitive position. However, important questions exist under these laws (and presumably future laws), including how to determine impairment.
For now, employers with employees in New Mexico and Oklahoma should reevaluate their existing drug use and testing policies to ensure that they comply with these new updates, and employers in all jurisdictions should review their current policies addressing medical marijuana and continue to monitor changes in this evolving area of law. In addition, employers with Oklahoma employees may want to classify positions that fall into the category of safety sensitive jobs and document the basis for concluding that those job positions have duties that could affect the health or safety of the employee or others.