Since marijuana use is illegal under federal law, can an applicant or employee refuse to answer questions about their marijuana use (medical or otherwise) by citing the 5th Amendment? The answer for current employees, unsurprisingly, is "No". The answer for job applicants might surprise you.
Most readers are familiar with the U.S. Supreme Court's holding in Garrity v. New Jersey, 385 U.S. 493 (1967). The 5th Amendment protects individuals against being compelled by the government to incriminate themselves. The Court in Garrity found that it is a form of compulsion to force an employee to chose between losing their job or incriminating themselves. As such, when a municipality forces an employee to answer questions that might incriminate them during an employment investigation, the statements given by the employee are compelled and may not be used against them in any criminal proceeding.
Current Employees: Casual conversations or unprompted declarations by an employee are not shielded by Garrity. If, however, you seek to question an employee about possible marijuana use - e.g. after a positive drug test - then Garrity likely would apply. Employees who assert their 5th Amendment privilege can be given a Garrity notice and compelled to answer or face termination for insubordination.
Job Applicants: The 10th Circuit recently held that Garrity does not extend to job applicants who are compelled as a condition of obtaining employment to make incriminating statements. Vogt v. City of Hays, 844 F.3d 1235 (10th Cir. 2017). The Court reasoned that a threat of losing out on a job opportunity was not the same as being threatened with losing your job. Applicants, the Court held, do not face the same pressures to answer questions and, therefore, are not subject to compulsion for 5th Amendment purposes.
The U.S. Supreme Court agreed to hear an appeal of this ruling. During the oral argument, several Justices asked questions that indicated that they may need to revisit the Garrity holding altogether. Three months after all briefing and oral arguments were completed, the Court issued a summary opinion dismissing the appeal as being improvidently granted. City of Hays v. Vogt, 584 U.S. _ (2018). As such, the 10th Circuit's holding in Vogt is final and binding in Oklahoma.
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.