Introduction
The number of American states legalizing the use of recreational marijuana is on the rise. According to Cork (2022), local communities in the affected jurisdictions are struggling with a variety of regulatory obstacles, such as safe use in specific environments, such as workplaces. Because the cannabis industry is extremely localized and urban communities are densely populated and have a large workforce, marijuana legislation is likely to impact urban employment (Cork, 2022). Therefore, people’s ability to earn a living and lead decent lives is likely to be affected. It is essential to evaluate the ways in which communities and businesses in Oklahoma have adapted their employment practices in the context of marijuana legalization. The legalization of marijuana presents numerous challenges to the interpretation of Oklahoma’s employment law in the context of federal laws that ban the consumption of the substance.
Explanation of Scenario
The progression of marijuana legalization in the United States has resulted in ambiguity and confusion regarding the impact of legislation on employee rights. Agostini (2020) notes that while states such as Oklahoma have attempted to create policies that protect employee rights while respecting the “rights and needs of marijuana users and patients,” there are several emergent challenges (p. 184). For instance, there is ambiguity regarding the off-duty use of marijuana by employees, employee rights regarding disciplinary action on the basis of drug screening, and the acceptance of cannabis consumption in the workplace (Agostini, 2020). It is vital to note that the aforementioned issues create additional challenges with regard to employee privacy, workplace safety, and employer liability.
Agostini (2020) notes that workplace policies that criminalize the use of marijuana while away from work are enforceable under federal law because the Controlled Substance Act identifies cannabis as a schedule I drug. Therefore, employers are able to take strict disciplinary action against employees who test positive for cannabis despite the legalization of the drug. In Oklahoma, the Oklahoma Medical Marijuana Act allows licensed individuals to possess eight ounces of marijuana flower in their households, and three ounces on their person (Barger, 2019). The Act’s License Holder Provisions stipulate that employers are not allowed to discriminate against employees during hiring, termination, or disciplinary action on the basis of an employee’s status as a license holder (Barger, 2019). It should be noted, however, that the highlighted protections do not apply in instances where an employee is not a valid license holder. While license holders are protected from drug test implications, the protections are voided in instances where the individual is found in possession of marijuana at the workplace (Barger, 2019). It is, therefore, a serious challenge for employees who need medical marijuana while at work.
Oklahoma’s Unity Bill makes significant amendments to the protections provided in the original Oklahoma Medical Marijuana Act. The Unity Bill creates a wide exception for employment positions that involve safety-sensitive employee responsibilities. The vastly broad definition of safety-sensitive duties essentially protects employers from claims that have their bases on License Holder Protections (Barger, 2019). In addition, the broad definition means that the type of job that falls under the safety-sensitive category is based entirely on the court’s interpretation of the statute’s non-specific definition.
The employer’s control of substances such as marijuana at the workplace is another contentious issue with marijuana legalization. Most states do not have clear statutory instructions governing the possession of marijuana while at work. In Oklahoma, the Oklahoma Standards for Workplace and Alcohol Testing Act (ODTA) is the primary legislation that governs drug use and possession in the workplace (Barger, 2019). There is, however, some potential source of conflict between the ODTA and the Oklahoma Medical Marijuana Act’s employment provisions. The ODTA is particularly employer-friendly, with regard to employee drug testing, unlike the Medical Marijuana Act. The ODTA allows employers to conduct testing in numerous scenarios. These include during hiring, post-accident testing, for-cause evaluation, random screening, scheduled fitness assessments, and post-rehabilitation assessments (Barger, 2019). The ODTA allows employers to take disciplinary action against an employee that tests positive for drugs and alcohol. It is vital to point out that the Act includes cannabinoids in its definition of drugs, meaning that individuals who test positive for marijuana may be discharged by their employer under the law.
The conflict between the two acts arises from the fact that while the ODTA allows employers to discipline employees for testing positive for cannabis, the Marijuana Act precludes employees from discipline under similar conditions. Barger (2019) notes that the lack of case law from other jurisdictions dealing with the aforementioned scenario is likely to lead to further confusion on the matter. The legalization of marijuana use is likely to complicate Oklahoma’s employment laws, especially in instances where employees sue for wrongful dismissal after a positive marijuana test. It is unfortunate that employees will likely suffer as a result of the confusion.
Agostini (2020) notes that the Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries case effectively illustrates the challenges employees face as a result of medical marijuana use. In the aforementioned case, the Supreme Court of Oregon concluded that the termination of an employee for medical marijuana use outside work did not constitute a violation of state law. The individual, in this case, was hired by an employer to work on a temporary basis as a drill press operator (Agostini, 2020). The employee used medical marijuana while away from work to address a specific medical ailment. After realizing that he would need to pass a drug test as a condition for permanent employment, the employee informed his superior that he had a marijuana license. The employee was subsequently discharged and formal charges against the employer were brought by the Bureau of Labor and Industries, which claimed that the employee had been discriminated against because of a disability (Agostini, 2020). The case was heard by the Supreme Court, which made its final judgment in favor of the employer.
Even though the court agreed that the employee’s actions were acceptable under state law, as is the case in Oklahoma, it further noted that the employee was in violation of federal law on the illegal use of drugs. Therefore, the employee’s termination on the basis of illegal drug use as outlined in federal law, meant that Oregon’s disability discrimination laws were not applicable. In essence, his off-duty protection against employer disciplinary action for marijuana use was voided by federal law.
Recounting Scenario
Marijuana has been a part of human history for a long time. The first recorded use of the substance was in 2727 B.C., and it was grown by George Washington at Mount Vernon (Ludlum et al., 2018). Early American medical journals described using cannabis to address a variety of medical challenges. It is currently the most widely used psychoactive drug in the U.S. and is as readily available as alcohol (Ludlum et al., 2018). Research studies such as the 2018 AARP survey, which demonstrated that 80% of older Americans support the use of medical marijuana, are proof that the public favors the use of the substance (Ludlum et al., 2018). The growth and use of marijuana were legal in many parts of America in the past. Kendrick (2020) notes that between the mid-nineteenth century and the early 1900s, marijuana was commonly used by physicians to treat a variety of illnesses. However, by the mid-1900s, the federal government took a firm stance against the substance and prohibited its use across the United States (Kendrick, 2020). Despite the evident popularity of marijuana, the legal system made its use illegal in most parts of the United States.
Cork (2022) notes that to date, approximately 33 states, four U.S. territories, and the District of Columbia have legalized the use of marijuana for medical use, while 11 states and two U.S. territories allow for recreational use among adults. All American States, including those in which marijuana use is legal, prohibit the use of the substance in public places and in work environments. The legalization of marijuana has created unique employment law challenges in many jurisdictions in the United States.
Federal law defines marijuana as an illegal substance, which means that federal employees are banned from using the substance. Over the years, as the acceptance of marijuana has increased, Federal legislation has relaxed. For instance, in February 2021, the Office of Personnel Management offered revised guidelines on the possession of marijuana by stating that possession of the substance does not automatically disqualify candidates from federal employment (Cork, 2022). The change in tune by federal organizations prompted further legalization of marijuana across the United States.
Workplace Issues
The first workplace issue is a reasonable accommodation. The decision as to whether or not to allow employees to use marijuana in the context of disabilities is a contentious issue. In Oklahoma, the law requires that employers should accommodate medical marijuana use on the basis of legal registration (Cork, 2022). The second issue is drug testing. Oklahoma allows businesses to set workplace regulations regarding drug testing policies. Despite the legalization of marijuana, many employers still maintain regulations that necessitate drug testing. The emphasis on reinforcing an organization’s “no drug use” position creates a serious challenge for employees that depend on marijuana for medicinal purposes (Cork, 2022, p. 607). Testing cannabis use in the workplace is challenging and may lead to the victimization of innocent individuals.
There are specific challenges with marijuana testing. First, the tests assess for the degree of THC that the individual has consumed rather than the degree of impairment (Cork, 2022). In addition, the mechanism of marijuana metabolisms creates a challenge when determining an individual’s degree of impairment. It is often the case that the drug can be detected months after use, as is the case for hair tests, which show positive results up to 90 days after use (Cork, 2022). In addition, the degree of impairment is dependent on an individual’s tolerance, metabolism, and test sensitivity (Cork, 2022). The aforementioned challenges are evident when employees are subjected to random testing as stipulated in Oklahoma’s Standards for Workplace and Alcohol Testing Act. The ambiguity created by the law means that employees may be discriminated against by employers who use the federal classification of marijuana as an illegal substance to deny individuals job opportunities, implement strict disciplinary measures, and deny promotions at the workplace.
Insight into Modern Legal/Social Change
The marijuana policy is a racial justice and civil rights issue that has facilitated social change in the United States. The new laws governing the use of cannabis are based on the realization that the war on drugs was racially motivated and designed to harm communities of color (Morris et al., 2021). Therefore, the new legal frameworks are designed to address some of the past injustices while empowering some of the affected communities. It is worth noting that reform advocates have expanded the aforementioned policy beyond criminal justice to include vital; economic policies. In states like Oklahoma, cannabis economic policies have a direct impact on employment law.
The most feasible solution for the aforementioned challenges is the creation of universal legislation governing marijuana use by the Uniform Law Commission (ULC). The ULC has created numerous uniform acts that address critical aspects of the law. The advantage of advocating for the creation of marijuana legislation by the ULC is the fact that the policies would be uniform across the states. In addition, enforcement would be consistent, thus providing employers, employees, and state judiciaries with clear legal guidelines (Agostini, 2020). In the current conditions, courts generally refer to federal law when addressing marijuana-related employment conflicts, which favors employers rather than employees. Therefore, there is an urgent need to formulate a standard set of laws that take into account the various needs of employees that depend on marijuana for certified medical reasons.
Drug testing in places of employment is a serious concern for the workforce. There is a need to consider employee privacy rights, public safety issues, and discrimination protections against employer-initiated testing. While it is reasonable to contend that employers may have safety-related concerns related to employee marijuana use, it is critical to ensure that employee rights with regard to access to employment are protected. Oklahoma has implemented a number of policies regarding employee protection in the workplace. While its efforts are commendable, there is some ambiguity with regard to the interaction of the employment section of the Oklahoma Medical Marijuana Act and the Oklahoma Standards for Workplace and Alcohol Testing Act. The introduction of the Unity Act may serve to address some of the challenges. However, the lack of a universal set of laws that the state’s courts can use as a reference means that many of the aforementioned challenges will continue to plague Oklahoma’s workforce.
Conclusion
The legalization of marijuana creates significant challenges with regard to employment law, particularly because federal statutes still consider the drug illegal. The resultant confusion has led to the discrimination of employees on the basis of positive marijuana tests. Employees have lost their jobs or been denied opportunities because they are medical marijuana users. The Oklahoma Medical Marijuana Act and the Unity Act define specific protections for employees that are legally registered to use medical marijuana. However, the Oklahoma Standards for Workplace and Alcohol Testing Act is in direct conflict with the aforementioned acts with regard to employee protections. There is a need to establish universal legislation governing marijuana use by the Uniform Law Commission in order to provide guidance on challenging employment issues that arise due to the legalization of marijuana.
References
Agostini, A. J. (2020). Marijuana legalization and employee-employer rights: An all-time high for non-uniformity. ABA Journal of Labor & Employment Law, 1, 183–206. Web.
Barger, B. T. (2019). Into the weeds of the newest field in employment law: The Oklahoma Medical Marijuana Act. Oklahoma Law Review, 72(2), 373–402. Web.
Cork, K. (2022). Marijuana use by employees: Drug-free policies and the changing legal landscape. Fordham Urban Law Journal, 49(3), 593–616. Web.
Kendrick, J. (2020). Blazed and confused : The hazy legal ethics of the cannabis craze and how Oklahoma can clear the air for its attorneys. Tulsa Law Review, 56(1), 143–167. Web.
Ludlum, M., Johnson, B. J., & Ford, D. (2018). Oklahoma’s state question 788 on medical marijuana: High on expectations, hazy on details. Southern Journal of Business & Ethics, 10, 60–70. Web.
Morris, S., Hudak, J., & Stenglein, C. (2021). State cannabis reform is putting social justice front and center. Brookings. Web.