Hiring in General
Job applicants should not be asked to provide information that cannot be used as a lawful basis for making a hiring decision. You do not ask about an applicant's race, religion, etc. because not only should those pieces of information be irrelevant to hiring decisions, but federal and state laws prohibit employers from using that information to make a hiring decision.
SQ 788 creates a new protected class - Medical Marijuana license holders. The new law prohibits an employer from making an employment decision (hiring, promotion, discipline, benefits) based on an individual's status as a license holder unless the employer can show an imminent threat of losing some federal financial or other benefit.
SQ 788 also prohibits you from making a hiring decision based solely on the fact that a license holder-applicant tested positive for marijuana on a pre-employment drug test. This protection only applies to license holders who test positive for marijuana. Applicants who do not possess a license are not protected if they test positive for marijuana. The protection does not apply to applicants who test positive for other substances.
The best-practice advice at this time is to avoid asking applicants if they possess a Medical Marijuana license during the hiring process. Exceptions to this advice would include: 1) if an applicant tests positive for marijuana then you would need to know if they had been issued a license, and 2) if you can demonstrate that possession of a license would legally preclude the applicant from obtaining some required certification or license or otherwise preclude them from being hired for the position (e.g. CDL drivers).
The only exception to SQ 788's employment protections is limited to situations where the hiring or continued employment of a Medical Marijuana license holder would pose an imminent threat of a loss of some money or other benefit created by federal law. OMAG knows of no such imminent threat.
Marijuana possession and use is illegal under federal law. The U.S. Supreme Court made clear in Gonzales v. Raich[i] that the federal prohibition applies to personal possession or cultivation on even the smallest of scales. How, then, can a Police Department employ someone who intends to violate federal law since they are required to take an oath to uphold the law?
Contrary to popular belief, the Constitutionally required oath of office found in Art. 15, Sec. 1 which is required to be taken by officers of a municipality only requires the official agree to "support, obey, and defend the Constitution of the United States..." The oath does not require an officer to swear to uphold federal law.
As with CDL drivers, the legal consequences of a positive drug test for a police officer-applicant are potentially serious. federal firearms statutes prohibit a person who is a user of illegal drugs from possessing or receiving a firearm or ammunition. 18 U.S.C. §922(g)(3). federal regulations implementing those statutes make clear that a person is considered an unlawful user of drugs if they have tested positive for a drug that is illegal at federal law (e.g. marijuana) on a drug test within the past year. See 27 C.F.R. §478.11. OMAG is not aware of any efforts to enforce these provisions against local law enforcement when an officer or applicant has tested positive for marijuana. But the statutory restriction does exist.
OMAG has been asked whether the 2nd Amendment would override this federal prohibition. We believe it would not. The U.S. Supreme Court has held that the 2nd Amendment only protects a person's right to possess a handgun at home.[ii] It does not create a right to carry a handgun in public nor does it create a right to possess or carry shotguns and rifles. Even if it did, it is unlikely that a court would extend those protections to on duty activities of public employees. Employees do not enjoy 1st Amendment protection when they speak pursuant to their official job duties.[iii] The government is given greater latitude in searching its work place (4th Amendment) and questioning its employees (5th Amendment) than apply when government searches or questions citizens.[iv] There is no reason to believe that the 2nd Amendment would receive greater protection.
SQ 788 prohibits you from refusing to hire an officer for testing positive for marijuana if they have a license. A Police Department could take the position that, as a consequence of testing positive, the applicant is unable to possess or receive a firearm and, therefore, cannot be hired. Such a position is not without its own risks since, unlike with CDL drivers, there are not regulations that mandate that you not hire an officer who tests positive for marijuana. Your Department risks being sued for violating the protections created by SQ 788 if it takes this position. At this time OMAG cannot advise that such a challenge would or would not be successful. OMAG hopes that this information will allow you to make an informed decision about whether to take the risk of refusing to hire applicants that test positive for marijuana where the refusal is based on the consequences of testing positive rather than the results of the test in and of themselves.
Commercial Drivers Licenses are regulated at the federal level, where marijuana remains illegal. The U.S. Department of Transportation has made its position clear as to both Medical and Recreational Marijuana laws adopted by the various states. SQ 788 may prohibit an employer from taking action against a Medical Marijuana license holder based solely on a positive drug test, but it does not prohibit the employer from taking action based on the consequences of a positive drug test.
DOT prohibits a person from performing safety-sensitive functions tied to the CDL until they pass a pre-employment drug screening. DOT prohibits a person from performing safety-sensitive functions after they test positive for marijuana. This may preclude an applicant from being hired if they cannot pass the drug screening regardless of whether they have a State issued Medical Marijuana license. Refusing to hire an applicant for a safety-sensitive CDL position because of the legal consequences of their failing a drug test is lawful since your decision would not be based "solely" on the failed test but, rather, the consequences of the failed test.
DOT does not take a position regarding possession of a Medical Marijuana license. If an applicant possesses a license but does not fail a drug test, then OMAG is aware of no reason that the applicant could not be hired. If the applicant advises that they have been issued a license, OMAG suggests that you remind the applicant that DOT regulations control over state law and that you advise what your municipality's position is on employees in positions that require 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.
SQ 788 prohibits you from refusing to hire an applicant based on their holding a Medical Marijuana license or their testing positive for marijuana on a pre-employment drug test if they have a license. As discussed above, CDL drivers must pass a pre-employment drug test or they cannot commence employment per-federal regulations. The failure to hire in that case is based on the legal consequences of the failed drug test rather that the results of the drug test itself.
For your remaining safety-sensitive positions, SQ 788 will prohibit you from refusing to hire a license holder or a license holder who tests positive for marijuana unless you can show that their status as a license holder or the positive drug test legally precludes them from being hired based on something outside your control.
i. Gonzales v. Raich, 545 U.S. 1 (2005)
ii. See D.C. v. Heller, 554 U.S. 570 (2008) (federal ban on handgun possession in the home deemed a violation of the 2nd Amendment) and McDonald v. City of Chicago, 130 S.Ct. 3020 (2010) (extending Heller to State prohibitions on possession of handguns in the home)
iii. See e.g. Pickering v. Board of Education, 391 U.S. 563 (1968) & Garcetti v. Ceballos, 547 U.S. 410 (2006)
iv. City of Ontario v. Quon, 560 U.S. 746 (2010) (4th Amendment); Garrity v. New Jersey, 385 U.S. 493 (1967) (5th Amendment)
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.