As a general rule, SQ 788 only prohibits a municipality from taking disciplinary action (up to and including termination of employment) because 1) an employee has been issued a Medical Marijuana license or 2) an employee with a license tests positive for marijuana. SQ 788 does not protect employees who:
- Possess marijuana at work (regardless of whether they have a license);
- Use marijuana at work (regardless of whether they have a license);
- Are impaired by marijuana at work (regardless of whether they have a license);
- Test positive for alcohol or any illegal drug other than marijuana on a drug test (regardless of whether they have a license);
- Test positive for marijuana if they have not been issued a license.
SQ 788 is about what your employees do off-duty, not on-duty, and only applies if they have been issued a license. There are, however, two classes of employees who may jeopardize their continued employment by using marijuana: Law Enforcement and CDL Drivers.
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 Department retain an employee who it knows has violated federal drug laws 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.
The legal consequences of a positive drug test for a police officer 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 workplace (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 disciplining an officer for testing positive for marijuana if they have a license. A Police Department could argue that the consequence of testing positive for marijuana is that the officer cannot lawfully possess a firearm until 1 year has expired since the positive drug test. Many officers employed by OMAG law enforcement agencies enjoy job protections in Collective Bargaining Agreements. Many officers employed by OMAG law enforcement agencies enjoy job protections provided for in the Police Pension statutes. In either instance, the municipal employer is required to have just cause prior to issuing discipline. In either instance, the employer may be required to convince an arbitrator or 5 person pension board to adopt their view. OMAG cannot advise whether such a position would be adopted by an arbitrator or pension board. In fact, it is entirely likely that there would not be consistency in rulings from case to case. Your department must decide for itself what position it intends to take.
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 after they have failed a drug test. There is a difference between disciplining the employee for failing a drug test and disciplining an employee for losing their ability to perform job duties that require a CDL. The issue will be consistency. If the municipal employer treats license holders who test positive for marijuana more harshly than other CDL drivers who lose their ability to perform CDL duties for other reasons, then the argument will be that the positive drug test, and not the loss of the ability to perform CDL duties, was the basis for the disciplinary action.
DOT does not take a position regarding possession of a Medical Marijuana license. As such, there would be no basis for taking disciplinary action against a CDL employee merely because they obtained a Medical Marijuana license. OMAG recommends that you remind all CDL employees that DOT regulations control over state law and that you 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.
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.