“If I’m a lawful medical marijuana user, you can’t fire me for testing positive for weed — right?” That’s not always the case. Oklahoma employers can learn something from a decision last month by an Arkansas federal court.
Oklahoma and Arkansas medical marijuana laws
Oklahoma and Arkansas have enacted medical marijuana laws with similar features. In Oklahoma, an individual may qualify for a state medical marijuana license permitting them to purchase and use medical marijuana. In Arkansas, “qualifying patients” may receive a registry identification card allowing medical marijuana use. Like Oklahoma, employers in Arkansas are prohibited from discriminating against an applicant or employee based upon their past or present status as medical marijuana license holder. Under the laws in both states, employers retain the ability to apply and enforce drug testing programs, including those that test for marijuana.
The medical marijuana laws in both states also give employers the right to designate certain types of positions as “safety-sensitive.” In Oklahoma, a safety-sensitive position is “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.” Individuals holding safety-sensitive positions may be terminated by an Oklahoma or Arkansas employer for testing positive for marijuana, even if they hold an Oklahoma medical marijuana license or an Arkansas registry identification card.
Positive marijuana test at the paper mill
Bryan Prinsen and Daniel Oden worked at a paper mill in Ashdown, Arkansas. Both men held jobs that were designated as safety-sensitive at the mill, and both were qualified under Arkansas law to use medical marijuana.
The paper mill had in place a drug testing policy that included testing for marijuana. Prinsen and Oden tested positive for marijuana. According to the testing policy and their union contract, Prinsen and Oden were placed on a disciplinary suspension and signed a Last Chance Agreement. The Last Chance Agreement required certain conditions to be met before they could return to work. One of conditions required Prinsen and Oden to “produce a negative drug test.” When they were unable to satisfy the requirements of their Last Chance Agreements, Prinsen and Oden were fired.
Discharge for positive test upheld
Believing they had been unlawfully terminated, Prinsen and Oden sued the paper mill, claiming their employer had unlawfully discriminated against them based upon their protected status as medical marijuana patients. A federal court dismissed the two fired employees’ claims and upheld the paper mills’ actions.
The court’s ruling was straightforward: First, the employer had in place a drug testing policy that tested for marijuana and was compliant with state law. Second, employees like Prinsen and Oden who worked in positions reasonably designated by their employer as safety-sensitive were subject to discharge, if they tested positive for marijuana. That included safety-sensitive employees who hold marijuana registry identification cards. The court pointed out that the law’s employment protection for an individual’s status as a marijuana cardholder did not prevent an employer from taking action based on a positive marijuana test when the employee held a safety-sensitive position.
For Oklahoma employers
If this had happened in Slapout, Oklahoma, rather than Ashdown, Arkansas, the same outcome would have resulted. Under Oklahoma law, employers cannot take employment actions based solely upon an individual having a medical marijuana license. However, they can test for marijuana so long as their testing protocol follows state law. Further, if an employer has designated jobs as safety-sensitive according to Oklahoma requirements, it can discipline or fire an employee working in a safety-sensitive position who tests positive for marijuana – even if the employee holds an Oklahoma medical marijuana license.
- Prinsen et al v. Domtar A.W., LLC, 4:22-cv-4076 (W.D. Ark. 1/31/23)