Employers may soon rely on ‘safety-sensitive’ exception to medical marijuana use

published in McAfee & Taft EmployerLINC | April 9, 2019

On March 14, 2019, Governor Stitt signed House Bill 2612, commonly referred to as the “Unity Bill,” into law.  The Unity Bill was the product of a bipartisan group of legislators tasked with implementing additional regulations designed to address gaps and ambiguities that remain after the enactment of State Question 788, which legalized medical marijuana in the state of Oklahoma last year.

The new law, which is called the Oklahoma Medical Marijuana and Patient Protection Act, contains a provision that allows employers to designate certain positions as “safety-sensitive.” In a nutshell, employees who work in positions classified as “safety-sensitive” can be disciplined if they test positive for marijuana or its metabolites, even if they have a valid Oklahoma medical marijuana license. In addition, employers may also refuse to hire applicants for safety-sensitive jobs who test positive for marijuana as part of a pre-employment drug test, even if those applicants can produce a valid medical marijuana patient license.

The provision specifically provides that:

“No 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, unless…the position is one involving safety-sensitive job duties….” “Safety-sensitive” is defined to include “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.” The Act provides a non-exhaustive list of duties which may qualify as “safety-sensitive,” and includes each of the following:

  1. the handling, packaging, processing, storage, disposal or transport of hazardous materials,
  2. the operation of a motor vehicle, other vehicle, equipment, machinery or power tools,
  3. 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,
  4. performing duties in the residential or commercial premises of a customer, supplier or vendor,
  5. the operation, maintenance or oversight of critical services and infrastructure, including but not limited to, electric, gas, and water utilities, power generation or distribution,
  6. the 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,
  7. preparing or handling food or medicine,
  8. carrying a firearm, or
  9. direct patient care or direct child care….

Best practices for using the exemption

As a general rule, exceptions like this are to be construed narrowly. Employers should assume that this exception will be construed narrowly, so as to limit the overall number of persons or job positions who qualify for the exception.

Employers who wish to use this exception should analyze the job duties of a particular position against the examples provided in the Act. Employers should ensure that duties considered are actual job duties of the particular position, i.e., that they are actually performed by employees in the job classification. Consider including (immediate) supervisors having first-hand knowledge of the job performed during this process. It is critical that employers document their efforts here.

It is important that employees working in “safety-sensitive” roles have notice they are subject to this exception and subject to disciplinary action in the event of a positive test for marijuana or its metabolites. Employers should update their written policies to specifically address the safety-sensitive exception. Employers should incorporate the definition of “safety-sensitive” from the new Act, and should also consider including examples of applicable duties from the new law. While employers are free to identify specific job titles or classifications as safety-sensitive positions, be sure to include a statement in the policy that neither the duties nor any job titles identified are intended to be an exhaustive or exclusive list of safety-sensitive positions. Encourage employees to contact human resource personnel with questions about their own status as a “safety-sensitive” employee.

Employees should regularly review any “safety-sensitive” designations to ensure the positions remain subject to the exception. Employers should also review and confirm a safety-sensitive designation prior to taking disciplinary action against an employee believed to be employed in a “safety-sensitive” role.

Effective date

It is important to note that the “safety-sensitive” exception is not yet available to employers. It is not yet effective in Oklahoma, and will not become effective until 90 days after the closure of the legislative session during which it was passed — likely mid- to late-summer of 2019. In addition, at least one lawsuit has been filed challenging the constitutionality of the Oklahoma Medical Marijuana and Patient Protection Act, which could potentially impact or delay its effective date. Employers can use this time to prepare to implement the exception.