Frequently asked questions for hospital employers after passage of SQ 788 medical marijuana

Posted on: 11/7/18

This is one FAQ article in a series from OHA about medical marijuana implementation after the legalization by voters in SQ 788 in June 2018. Please see the OHA website for more FAQs on other topics.

Can employers discriminate against a person in hiring, termination, or other employment matters?

Not if the person holds a valid medical marijuana license. State Question 788 provides:

Unless a failure to do so would cause an employer to imminently lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, terminating or imposing any term or condition of employment or otherwise penalize a person based upon the person’s status as a medical marijuana license holder. See State Question 788.  

However, some hospitals have determined that they must comply with the federal Drug-Free Workplace Act of 1988, which would require them to pre-screen job applicants and include those who hold medical marijuana licenses. The Drug-Free Workplace Act of 1988 requires some federal contractors and all federal grantees to agree that they will provide drug-free workplaces as a condition of receiving a contract or grant from a federal agency.

If an employee presents me with their license, how do I determine if it is valid?

Medical marijuana licenses can be validated by going to the Oklahoma Medical Marijuana Authority website, select the button on the homepage that is “verify a license” and type in the license number. If the number is not verified on the state website, it is not a valid license.

What if an employee exhibits reasonable suspicion of being under the influence of drugs in the workplace? Can an employer take action then?

Yes. State Question 788 further provides:

Employers may take action against a holder of a medical marijuana license if the holder uses or possesses marijuana while in the holder’s place of employment or during the hours of employment. Employers may not take action against the holder of a medical marijuana license solely based upon the status of an employee as a medical marijuana license holder or the results of a drug test showing positive for marijuana or its components.

Hospitals may adopt policies prohibiting any and all employees – medical marijuana license holder or otherwise – from using, possessing or being under the influence of marijuana while on hospital property or while performing duties for the hospital. Further, hospitals may adopt policies for medical marijuana similar to those that may already be in existence prohibiting an individual from being under the influence of alcohol or a controlled dangerous substance as those substances are defined in the Uniform Dangerous Substance Act. (63 O.S. § 2-101)

To the extent an employer implements a drug-testing program of potential and/or current employees, hospitals are encouraged to adopt a policy prohibiting the taking of any action against such applicant or employee solely based on their status as a medical marijuana license holder. Should an individual test positive for cannabinoids, hospitals should allow the individual an opportunity to provide evidence of a current valid medical marijuana license.

How will SQ 788 affect drug testing employees, including those with patient contact?

Under SQ 788, both pre-employment and random drug testing are prohibited under the current statute if the employee holds a medical marijuana license.  If the employee is not a medical marijuana license holder and they are in a “safety-sensitive” position, such as a physician or nurse, that employee may be subject to random testing subject to the limitations found in the Oklahoma Workplace Drug and Alcohol Testing Act. Further, if your hospital is subject to the federal Drug-Free Workplace Act of 1988, which requires some federal contractors and all federal grantees to agree that they will provide drug-free workplaces as a condition of receiving a contract or grant from a federal agency, you must comply with federal law to drug screen and test employees.

Oklahoma employers who wish to drug test employees in Oklahoma can only do so in accordance with the Workplace Drug and Alcohol Testing Act. (40 O.S. §554, cited below)

“Employers may conduct drug and alcohol testing in accordance with the Standards for Workplace Drug and Alcohol Testing Act. Employers who choose to conduct drug or alcohol testing may only request or require an applicant or employee to undergo testing under any of the following circumstances:
1. Applicant and transfer/reassignment testing: A public or private employer may request or require an applicant to undergo drug or alcohol testing and may use a refusal to undergo testing or a positive test result as a basis for refusal to hire. A public or private employer may also request or require an employee who transfers to a different position or job, or who is reassigned to a different position or job, to undergo drug or alcohol testing;
2. For-cause testing: A public or private employer may request or require an employee to undergo drug or alcohol testing at any time it reasonably believes that the employee may be under the influence of drugs or alcohol, including, but not limited to, the following circumstances:

a. drugs or alcohol on or about the employee’s person or in the employee’s vicinity,
b. conduct on the employee’s part that suggests impairment or influence of drugs or alcohol,
c. a report of drug or alcohol use while at work or on duty,
d. information that an employee has tampered with drug or alcohol testing at any time,
e. negative performance patterns, or
f. excessive or unexplained absenteeism or tardiness;

3. Post-accident testing: A public or private employer may require an employee to undergo drug or alcohol testing if the employee or another person has sustained an injury while at work or property has been damaged while at work, including damage to equipment. For purposes of workers’ compensation, no employee who tests positive for the presence of substances defined and consumed pursuant to Section 465.20 of Title 63 of the Oklahoma Statutes, alcohol, illegal drugs, or illegally used chemicals, or refuses to take a drug or alcohol test required by the employer, shall be eligible for such compensation;
4. Random testing: A public or private employer may request or require an employee or all members of an employment classification or group to undergo drug or alcohol testing at random and may limit its random testing programs to particular employment classifications or groups, except that a public employer may require random testing only of employees who:

a. are police or peace officers,
b. have drug interdiction responsibilities,
c. are authorized to carry firearms,
d. are engaged in activities which directly affect the safety of others,
e. are working for a public hospital including any hospital owned or operated by a municipality, county, or public trust, or
f. work in direct contact with inmates in the custody of the Department of Corrections or work in direct contact with juvenile delinquents or children in need of supervision in the custody of the Department of Human Services;

5. Scheduled, fitness-for-duty, return from leave and other periodic testing: A public or private employer may request or require an employee to undergo drug or alcohol testing if the test is conducted as a routine part of a routinely scheduled employee fitness-for-duty medical examination, or is requested or required by the employer in connection with an employee’s return to duty from leave of absence, or which is scheduled routinely as part of the employer’s written policy, except that a public employer may require scheduled, periodic testing only of employees who:

a. are police or peace officers,
b. have drug interdiction responsibilities,
c. are authorized to carry firearms,
d. are engaged in activities which directly affect the safety of others,
e. are working for a public hospital including any hospital owned or operated by a municipality, county, or public trust, or
f. work in direct contact with inmates in the custody of the Department of Corrections or work in direct contact with juvenile delinquents or children in need of supervision in the custody of the Department of Human Services; and

6. Post-rehabilitation testing: A public or private employer may request or require an employee to undergo drug or alcohol testing for a period of up to two (2) years commencing with the employee’s return to work, following a positive test or following participation in a drug or alcohol dependency treatment program.”

Is cannabidiol (CBD) the same thing as medical marijuana?

No. Cannabidiol or “CBD” is a derivative of the cannabis plant that also has therapeutic uses, but is not included in Oklahoma’s statutory definition of “marijuana.” It is therefore not subject to the same restrictions as medical marijuana and a license is not needed to obtain CBD oil. By definition in Oklahoma, CBD can contain only up to a trace amount of tetrahydrocannabinol (THC), the main psychoactive component of marijuana, so CBD products have no psychoactive effects. However, in drug testing of applicants or employees, trace amount of detectable THC may appear. This is Oklahoma’s statutory definition for cannabidiol:

“ ‘Cannabidiol’ means a nonpsychoactive cannabinoid found in the plant Cannabis sativa L. or any other preparation thereof, that has a tetrahydrocannabinol concentration of not more than three-tenths of one percent (0.3%) and that is delivered to the patient in the form of a liquid.” (63 O.S. § 2-801(3))

Under state law, only specific uses are authorized for CBD with a detectable THC content (though it must always be below 0.03 percent). CBD that contains no detectable THC content, however, is commonly sold and used in Oklahoma with few restrictions. In general, the cannabidiol products sold in Oklahoma’s “CBD shops” should not contain detectable THC.

Under federal law, cannabidiol does not have a separate status from other marijuana derivatives, and so is still classified as a Schedule I controlled substance – even when it contains no THC. While legalization of CBD at the federal level has been discussed as a likely possibility, at this time it is still only explicitly legal at the state level under the conditions of the Oklahoma law.