Column by Adria Berry, VP of Government Affairs at the State Chamber, published in the Tulsa World on June 9, 2018
State Question 788 is problematic for many reasons. While increasing business liability and diminishing workplace safety, the referendum creates a protected class of employees for those holding a medical marijuana license. If it passes, employers could possibly see workers compensation rates increase. At least five states (Connecticut, Maine, Minnesota, New Jersey and New Mexico) say medical marijuana is a permissible workers compensation treatment that requires insurer reimbursement.
The ability for most employers to have a drug-free workplace or even test for marijuana usage will be challenged if SQ 788 passes. As stated in SQ 788: “An employer may not discriminate against a person in hiring, termination… or otherwise penalize a person based upon status as a medical marijuana license holder” or “based upon the results of a drug test showing positive for marijuana or its components.” The only exception to the above mandate is unless it would “cause an employer to imminently lose a monetary or licensing related benefit under federal law.”
SQ 788 is vague in its wording about the rights of employers. For example, if an employee uses a piece of equipment to perform their job, an employer would want to ensure the employee hasn’t taken any substance before work that could impair their ability to use it properly. Such usage could increase liability and potentially endanger personnel and customers. Employers are allowed to set boundaries regarding employees drinking alcohol or taking prescription painkillers on the job. The rules surrounding SQ 788 should be no different.
Further, the language in SQ 788 would prohibit an employer from disciplining an employee who fails a drug test if they hold a medical marijuana license. Businesses have a strong interest in protecting their workers and operations from dangerous accidents. Tying the hands of employers and telling them they cannot discipline an employee who uses a controlled substance or medication right before work is a recipe for disaster.
SQ 788 would limit the ability of any Oklahoma company to have a drug-free workplace, essentially creating a special class of citizens and employees. It will potentially restrict employers’ ability to execute appropriate oversight for employees who are impaired and unable to perform their job. This is concerning for both overall public safety and safety in the workplace.
It’s time for a thoughtful public debate about both the merits and hazards of legalizing medical marijuana. However, the poorly written language in SQ 788 — and the resulting risks to Oklahoma citizens and employers under this particular state question — is deeply concerning to the State Chamber and many others in the business community.