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.
The Oklahoma Medical Marijuana statutes (hereinafter referenced as the OMM statutes) 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.
The OMM statutes also prohibit an employer 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 unless that position qualifies as safety-sensitive. 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) the position is safety-sensitive or if 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).
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 DOT and OMM statutes prohibit a person from performing safety-sensitive functions after they test positive for marijuana. The OMM statutes consider driving a safety-sensitive task or duty regardless of whether the position requires the driver to possess a CDL or not. 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 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.
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 and OMM statutes prohibit use of medical marijuana for positions that require driving.
The OMM statutes prohibit employers 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. However, the OMM statutes carved out an exception to this general rule and allows an employer to refuse to hire, discipline, discharge or otherwise penalize an applicant or employee if the position is one involving safety-sensitive job duties, as defined in the Act.
"Safety-sensitive" means any job that includes tasks or duties that the employer reasonably believes could affect the safety and health of the employee performing the task or others including, but not limited to, any of the following:
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,
carrying a firearm, or
direct patient care or direct child care; and
Before an employer takes any adverse action against an employee based on the safety-sensitive exception, it’s best to ensure that the particular tasks or duties that make the job safety-sensitive are written in a job description and that applicants and employees are aware of the job duties that result in the position qualifying as safety-sensitive. It is suggested that employers add language to the job applications and job descriptions that place an applicant or employee on notice at the outset that the position is safety-sensitive. Sample language might look something like:
JOB DESCRIPTION NOTICE: This classification is a “safety sensitive” position as defined by the United States Department of Transportation drug and alcohol testing regulations, the Oklahoma Standards for Workplace Drug and Alcohol Testing Act and/or Oklahoma Medical Marijuana laws. As a “safety sensitive” classification, you will be subject to drug and alcohol testing, including random testing. Marijuana is one of the substances included in the drug panel screening. Possession of a medical marijuana license will not excuse you from the testing process, or the consequences of testing positive for marijuana.
JOB APPLICATION NOTICE: Certain jobs are classified as “safety sensitive” as defined by the United States Department of Transportation drug, alcohol testing regulations, The Oklahoma Standards for Workplace Drug and Alcohol Testing Act and/or Oklahoma Medical Marijuana laws. As a “safety sensitive” classification, you will be subject to drug and alcohol testing, including random testing. Marijuana is one of the substances included in the drug panel screening. Possession of a medical marijuana license will not excuse you from the testing process, or the consequences of testing positive for marijuana. If you have questions about whether the position you are applying for is classified as “safety sensitive” please consult with the HR Department.
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.