This article from JDSUPRA listed some practical tips regarding drug testing in Oklahoma. But as we were reading the article we realized the tips could be applied in any state in the US. Below is a summary of the article. We recommend you read the article in its entirety.
In 2018, Oklahoma voters approved the legalization of medical marijuana. This resulted in multiple phases of implementing legislation. Here are a few practical tips for administering your drug and alcohol testing policy.
Tip #1 – Designate safety-sensitive positions for purposes of drug and alcohol testing. [R&A Comment – We have previously posted here about the importance of designating safety sensitive positions]
The Oklahoma Medical Marijuana Act provides that, “unless failure to do so would cause an employer the potential to lose a monetary or licensing-related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon the status of the person as a licensed medical marijuana patient.” Okla. Stat. tit. 63, § 425. However, subsequent legislation (the Oklahoma Medical Marijuana and Patient Protection Act, sometimes referred to as the “Unity Bill”) creates an “exception.”
The Unity Bill provides that an employer may refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of a positive test for marijuana components or metabolites if the individual is applying for or employed in a position “involving safety-sensitive job duties.” Okla. Stat. tit. 63, § 427.8(H)(2)(c). The statute defines “safety-sensitive” as “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:”
- handling, packaging, processing, storage, disposal or transport of hazardous materials,
- 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,
- operation, maintenance or oversight of critical services and infrastructure including, but not limited to, electric, gas, and water utilities, power generation or distribution,
- 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,
- dispensing pharmaceuticals,
- carrying a firearm, or
- direct patient care or direct childcare.
Note that this list is non-exhaustive. Other positions can certainly qualify as “safety-sensitive” positions depending on the tasks performed. [R&A Comment – we have a post here that suggests a wide variety of jobs that could be considered safety sensitive.]
Have you expressly designated your safety-sensitive positions as “safety-sensitive?”
Specifically identifying a particular position as “safety-sensitive” – in a job posting, application materials, interview process and job description – can go a long way towards eliminating reliance-based claims. It can also trim your applicant pool and eliminate costs associated with testing applicants who cannot satisfy the conditions of the position.
Tip #2 – Know the lingo: “impairment,” “under the influence,” “impact on performance.”
When an individual tests positive for a substance in excess of applicable concentration cutoffs this does not mean the individual was “impaired” or “under the influence” at the time of testing. There exists no universally accepted scientific threshold for equating THC blood levels with “impairment” or being “under the influence.” [R&A Comment – We disagree. An individual can be found under the influence of a drug by drug test results. However, it is difficult to prove impairment.]
What good is a positive marijuana test result? In a state like Oklahoma that allows an employer to terminate an employee in a “safety-sensitive” position merely for testing positive, it is a solid basis for termination. And alongside other evidence, such as behavior consistent with marijuana use observed at the time of testing, it can help establish a policy violation.
This brings us to a third principle…
Tip #3 – Use the senses: not all disciplinary opportunities require testing.
Under Oklahoma’s drug testing laws, an employer can prohibit the use, possession, concealment, manufacture, distribution, dispensation, promotion, transportation, purchase or sale of alcohol or drugs – including medical marijuana – while on the employer’s property, jobsites or vehicles, and/or during working hours. An employer can also require employees to report to work ready and able to perform their job duties safely, without being impacted by the effects of drugs or alcohol.
What type of evidence do you need? JDSUPRA recommends that you borrow from the Oklahoma statute. OKLA. STAT. tit. 40, § 554(2) authorizes “for cause testing” when an employer “reasonably believes that the employee may be under the influence of drugs or alcohol, including but not limited to the following circumstances:
- drugs or alcohol on or about the employee’s person or in the employee’s vicinity,
- conduct on the employee’s part that suggests impairment or influence of drugs or alcohol,
- a report of drug or alcohol use while at work or on duty,
- information that an employee has tampered with drug or alcohol testing at any time,
- negative performance patterns, or
- excessive or unexplained absenteeism or tardiness.”
Drug testing is a helpful tool for employers, but it’s only one tool in the belt. Be sure to consider whether there are other, more appropriate ways to proceed. Avoid pitfalls now and use the right lingo. You’ll be glad you did.
James P. Randisi, President of Randisi & Associates, Inc., has been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs since 1999. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. To learn more about the rights of employees who test positive for marijuana, Mr. Randisi can be contacted by phone at 410.336.0287 or Email: info@randisiandassociates.com or the website at Randisiandassociates.com
