Municipalities can discipline employees for being impaired by, using or possessing marijuana on duty. The role of drug testing in that process, however, can be tricky. The key questions to ask when confronting a positive drug test are:
- Did the employee have a Medical Marijuana license? If not, SQ 788 offers no job protection. See Medical Marijuana and Discipline.
- If the employee has a State issued license and tested positive for marijuana, then are we disciplining the employee for failing the test or for being high at work?
Nothing in SQ 788 would require you to amend your current Drug and Alcohol Testing policy. SQ 788 did not change the Oklahoma "Standards for Workplace Drug and Alcohol Testing Act", 40 O.S. §551 et seq. If, however, your policy contains mandatory language that those who test positive will be disciplined, then you may want to consider amending the policy. Specifically, OMAG recommends that you include language (if not already included) that the individual will not be considered to have failed the test if their use of the substance was lawful and they were not impaired while on duty. Again, these amendments are only recommended if your current policy would require that you take action against all employees, including license holders, who test positive for marijuana.
Nothing in SQ 788 prevents you from having a Drug Free Workplace policy. SQ 788 does not protect an employee with a Medical Marijuana license who is impaired on duty nor does it protect an employee who uses or possesses marijuana at the workplace. SQ 788 provides protection for license holders for what they might do off duty. There is no reason to amend your Drug Free Workplace policy unless, for some reason, it addressed off duty drug use by an employee. If it addresses off duty conduct, then it may be necessary to amend the policy to make clear that it does not apply to off duty conduct that is legal under Oklahoma law.
Drug testing by public employers is considered to be a "search" under the 4th Amendment. Normally, the 4th Amendment would require you to have individualized reasonable suspicion that the employee was under the influence of alcohol or drugs prior to conducting a test. Post-accident testing is not based on individualized reasonable suspicion of impairment and would normally not be authorized under the 4th Amendment. The U.S. Supreme Court has nevertheless held that post-accident drug testing was Constitutional in Skinner v. Railway Labor Executives' Association, 489 U.S. 602 (1989).
Part of the Court's justification for allowing post-accident testing was that, in an accident, it is often difficult to determine what caused an accident, how an employee might have contributed to the cause of the accident, and whether impairment might have played a part. The Court also took into account that it can be difficult to determine impairment objectively under the circumstances. As such, a special need existed to allow public employers to conduct a drug test absent individualized reasonable suspicion and was held to be sufficient to render post-accident drug tests constitutional.
The Court acknowledged that, when it comes to drug use, a positive drug test would not conclusively prove that the employee was impaired at the time of the accident. While testing positive for drug use in a post-accident test would not prove that the employee was impaired at the moment of the accident, the positive test would "provide the basis for further investigative work designed to determine whether the employee used drugs at the relevant times." Skinner, 489 U.S. at 632.
SQ 788 prohibits an employer from basing an employment decision solely on a positive drug test. In the context of post-accident testing, a positive test may form the basis for further investigation into whether the employee was intoxicated at the time of the accident. SQ 788 does not protect a license holder who is found, through subsequent investigation, to have likely been impaired at the time of the accident.
SQ 788's prohibits you from basing discipline decisions "solely" on the drug test results. If you had reasonable suspicion to believe that an employee was under the influence of marijuana at work, then a failed drug test would not be the sole basis for taking action - it would merely be one part of the basis for taking action.
Before taking disciplinary action, OMAG would recommend that you review what the signs of impairment were. Were the signs of impairment consistent or inconsistent with marijuana use? A positive drug test for marijuana is not conclusive proof of intoxication since, unlike alcohol, there is no 1:1 relationship between the level of impairment caused by marijuana and the detectable levels of THC in urine or blood. This is where the documented observations of impaired behavior become critical.
One area of concern is that a supervisor might focus their attention on license holders. They might even cite the employee's license as part of the basis for believing reasonable suspicion exists to believe that the employee is impaired. OMAG strongly recommends against using an employee's status as a license holder when evaluating whether reasonable suspicion exists to believe that the employee is impaired on duty.
SQ 788 prohibits an employer from basing an employment decision solely on a positive drug test. In the context of reasonable-suspicion testing, the positive drug test is part of the consideration, but it is not the sole basis for making a decision. Documented observations of impaired behavior are also part of the facts to be considered. SQ 788 does not prohibit you from taking action so long as the drug test result is not the sole basis for your action.
Random drug tests are administered without any suspicion that the employee was impaired on duty. SQ 788 prohibits you from taking employment action against a license holder based solely on a positive drug test for marijuana. Unless there is some legal consequence for testing positive on a random drug test, then you cannot discipline a license holder-employee who tests positive for marijuana on a random drug test.
While SQ 788 prohibits you from disciplining an employee who possesses a Medical Marijuana license solely because they test positive for marijuana on a drug test, that does not mean a driver's Commercial Drivers License (CDL) is protected by SQ 788. CDL's are regulated at the federal level and can be jeopardized as a consequences of failing a drug test. The Department of Transportation (DOT) has made clear that the DOT Drug & Alcohol Testing Regulations, 49 CFR Part 40, do not authorize the use of Schedule 1 narcotics such as marijuana. See DOT notices relating to Medical and Recreational Marijuana. SQ 788 does not prohibit you from taking employment action against an employee because they lose their CDL or because they are prohibited from performing job duties tied to their CDL following a failed test.
Consistency in your disciplinary practices is key. Treating drivers who lose their CDL due to lawful (at State law) Medical Marijuana use differently than drivers who lose their CDL for all other reasons could result in a lawsuit. If only those employees who test positive for lawful marijuana use are fired then the argument would be that the failed drug test was the sole basis for deciding between termination and lesser discipline. OMAG cannot advise whether a court would find that legal theory to be viable under SQ 788. OMAG can advise, however, that gaining an answer to that question could prove costly.
DOT does not take the position that Medical Marijuana license holders are precluded from performing CDL duties. The use of marijuana and not the possession of the marijuana license is what is relevant. OMAG suggests that you remind your employees who hold CDL licenses that DOT regulations control over State law and that you also advise what your municipality's position is on employees in positions that require a CDL who lose the ability to perform their CDL functions due to a drug test - i.e. inform them if you have a zero tolerance policy. This may require further internal discussions about whether you have a zero tolerance policy and whether it has been consistently applied.
DISCLAIMER: OMAG has reviewed SQ 788, existing OK statutes and case law as well as statutes and case law from other states that have legalized marijuana to some degree. OMAG cannot predict how our Legislature or Courts will respond to SQ 788 and can only offer our best advice on the subject. OMAG members seeking legal advice on SQ 788 should be aware that there may not be clear-cut answers on some of the issues for some time. OMAG offers this guidance to help your municipality make informed decisions about policies and procedures, directly or indirectly related to medical marijuana, until some of the issues can be decided by the Legislature or the Courts.