Does Oklahoma’s medical marijuana law have a safety-sensitive carve-out?
Oklahoma’s medical marijuana law prohibits an employer from refusing to hire, discipline, or penalize an applicant or employee based solely on a marijuana-positive drug test. Recently they passed legislation that creates an exception for positions involving safety-sensitive duties. This includes positions that involve duties that an employer reasonably believes could impact the health and safety of the employee or others. Examples of safety-sensitive positions include, but aren’t limited to, operating motor vehicles, equipment, machinery, or power tools, dispensing pharmaceuticals, direct patient or child care, or handling, packaging, processing, storing, disposing, or transporting hazardous materials, etc. Employers should establish which positions are safety-sensitive within their company and provide a clear and concise written drug testing policy abiding by Oklahoma medical marijuana laws. Once that’s complete and you share it with your employees, you should be in good shape!
How may an employer show themselves to have provided a "reasonable accommodation" to employees who have been directed by a physician to use CBD, even though such use may result in a positive drug test?
An employer would follow the “accommodation” guidelines as indicated in their employment policy. The corporate HR group should assess whether or not efforts have been appropriate and should indicate when those efforts have been exhausted. Reasonable accommodations are changes made to accommodate a person’s disability, i.e., allowing someone to sit instead of stand, modifying work schedules, modifying work duties, placing an employee on leave until they complete all medication, etc.
If an employee informs the employer that they are using a CBD product, what is the employers responsibility if that employee is in a safety-sensitive position?
The employer’s responsibility is to explain that there is no exception (under DOT regulations) for the use of any product that presents as THC metabolites and exceeds set thresholds on a DOT drug screen. If it is non-DOT, they should refer to the company policy. If the policy accepts CBD oil, then that should be communicated.
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