If SQ 788 allows for "Medical" Marijuana, does that mean that Oklahoma municipalities must consider allowing employees to use marijuana on duty if requested as a "Reasonable Accommodation"? The right to reasonable accommodations for disabled workers is protected under both the federal Americans with Disabilities Act (ADA) and Oklahoma Anti-Discrimination Act (OADA). There is far more clarity under the ADA than the OADA as to the treatment of Medical Marijuana with regard to the reasonable accommodation process.
The ADA does not protect those who currently engage in the illegal use of drugs. See 42 U.S.C. §12114(a), §12210(a) & 29 C.F.R. §1630.3. “Illegal use of drugs” is defined as being the use, possession or distribution of drugs which are deemed unlawful under the Federal Controlled Substances Act (CSA). The phrase does not include use of medication under a doctor's supervision or other uses that are authorized by the CSA. The question becomes whether medical marijuana fits under this doctor's supervision exception.
While there is no U.S. Supreme Court or 10th Circuit guidance on this question, other jurisdictions have widely adopted the view adopted by the 9th Circuit in James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012) that marijuana use is still the "illegal use of drugs" under the ADA. The 9th Circuit held that the doctor's supervision exception is qualified in that the use must be authorized under the Federal CSA.
Marijuana is a Schedule I narcotic under the CSA, 21 U.S.C. §812, meaning that it has “no currently accepted medical use in treatment in the United States.” The Court concluded that an individual cannot use marijuana under a doctor's supervision in a manner which is authorized by the CSA. As such, marijuana users are individuals engaged in the "illegal use of drugs" and are not protected by the ADA.
Condition vs cure. The ADA may not protect the use of marijuana, but it likely protects the condition that the employee cited to obtain their license to use marijuana. You are still obligated to discuss reasonable accommodations with disabled employees. The ADA does not, however, require that you consider whether medical marijuana use would be a reasonable accommodation.
SQ 788 contains its own employment protections (see OMAG's posts on Hiring and Discipline). The question is whether the OADA, 25 O.S. §1101 et seq., offers any additional protections. Prior to 2011, the OADA expressly existed as a mechanism to execute Federal protections at a State level. In response to several court cases, the legislature overhauled the OADA, and changed its purpose away from executing the Federal statutes. Today, the OADA's purpose is to provide for separate State law protection for various forms of discrimination.
The OADA does not contain language excluding illegal drug users from its protections. As such, while the ADA may not require a discussion of whether Medical Marijuana could be a reasonable accommodation, the OADA likely requires that you engage in a dialogue with an employee who holds a Medical Marijuana license about whether marijuana use would be a reasonable accommodation.
To be clear, there is a difference between on and off duty use of marijuana by a license holder. SQ 788 already protects the license holder who only uses marijuana off duty. The issue here would be whether use of marijuana on duty or prior to coming on duty must be entertained as a reasonable accommodation under the OADA.
OMAG believes the most likely answer is that marijuana use would not be a reasonable accommodation under the OADA. First, SQ 788 establishes the narrow parameters for the lawful use of marijuana and expressly did not seek to authorize on duty impairment or use. Second, SQ 788 did not remove marijuana from the list of Schedule I narcotics in State statutes. 63 O.S. 2018 §2-204(C)(12). Despite its label as "medical", marijuana remains, at State (and Federal) law, a substance that has "No accepted medical use in the United States or lacks accepted safety for use in treatment under medical supervision." 63 O.S. 2018 §2-203(2).
State law may allow for a discussion as to whether marijuana would be a reasonable accommodation for a license holder, but it certainly does not declare that marijuana is a reasonable accommodation. Given marijuana causes impairment, has no accepted medical use, and the fact that there likely would be alternative medications or treatment options to address the employee's condition, OMAG believes it is highly unlikely that a Court would find that the OADA requires employers to allow marijuana use or impairment as a reasonable accommodation under the OADA.
Return to OMAG's Medical Marijuana page
DISCLAIMER: The process leading up to the implementation of medical marijuana in Oklahoma has been a long one and is still on-going. OMAG attorneys have sought to keep updating this webpage with the most up-to-date information possible. OMAG members seeking advice on the medical marijuana statutes should be aware that there may not be clear-cut answers on some of the issues. OMAG offers this guidance to help your municipality make informed decisions about policies and procedures, directly or indirectly related to medical marijuana, until some of the issues can be decided by the Legislature or the Courts. If you have questions or concerns about the information contained in these articles, please email one of the attorneys in the OMAG Legal Department at omaglegal@omag.org.
