“Drug Testing,” a 2006 episode of the hit TV series The Office, opens with the intrepid corporate climber, Dwight Schrute, discovering marijuana on the premises of the fictional company, Dunder Mifflin.¹ Never one to overlook the slightest possibility of an infraction by a colleague, Dwight springs into action to identify the culprit, interrogating his fellow employees and doling out “random” drug tests. Dwight’s overreaction prompts his colleague, Jim Halpert, to reflect that the presence of drugs in the workplace may be riskier than drug use itself. His antics, while more amusing than successful, provide a useful case study for a number of issues surrounding marijuana and the workplace.

OKLAHOMA EMPLOYERS’ RIGHT (AND SOMETIMES DUTY) TO MAINTAIN A DRUG-FREE WORKPLACE

Dwight’s shocked reaction reflects the widely accepted consensus that drugs do not belong in the workplace. Oklahoma law supports the right of employers to keep their worksites free of drugs and alcohol.² While certain limited protections exist for employees recovering from addiction (discussed below), the Americans with Disabilities Act (ADA) expressly permits employers to prohibit the use or being under the influence of illegal drugs, including marijuana, in the workplace.³ Going further, employers with federal government contracts or grants and employers that operate in the commercial or public transportation sector are required by federal law to maintain a drug-free workplace.⁴ The same goes for federal government employers⁵ and the majority of state and local government employers.

Savvy employers will recognize the imperative of taking a proactive approach when it comes to drug and alcohol use by employees. Mishandling issues with impaired employees can result in significant liability for an unprepared employer.⁶ Indeed, Oklahoma law encourages employers to think through drug and alcohol issues in advance by conditioning the ability of employers to conduct drug testing (discussed in the following section) on having a written policy.⁷

Later in the episode, Dwight Schrute demands that temporary employee Ryan Howard allow his car to be searched after learning Ryan attended a party the night before. The right of private employers to conduct searches of employee property while on the employer’s premises, including searches for drugs, is not prohibited by federal or Oklahoma law.⁸ Private employer searches of employee vehicles have been expressly permitted in Oklahoma since 2003 with the following limitation:

Employers of this state that conduct employee-owned vehicle searches of its [sic] employees shall conduct such search on the property of the employer only. Searches that are conducted on property not owned or rented by the employer shall require a search warrant issued according to law.⁹

In a June 2020 decision, the National Labor Relations Board upheld an employee vehicle search policy against a union challenge that the policy violated the National Labor Relations Act.¹⁰

EMPLOYEE DRUG TESTING: A MATTER OF POLICY

Dwight’s investigation next turns to a demand that his colleagues submit to drug testing. When questioned, human resources representative Toby Flenderson confirms all employees agreed in writing to random drug testing when they applied for the job.

Oklahoma law permits most employers to engage in drug testing, including random drug testing, if they comply with the requirements of the Oklahoma Standards for Workplace Alcohol and Drug Testing Act (the act).¹¹ Understandably, the act exempts drug testing that is “required by and conducted pursuant to federal law or regulation[.]”¹²

The act permits employee drug testing only under the following circumstances:

• Applicant and transfer/assignment testing
• For-cause testing “any time [the employer] reasonably believes the employee may be under the influence of drugs or alcohol, including, but not limited to, the following circumstances: a. drugs or alcohol on or about the employee’s person or in the employee’s vicinity, b. conduct on the employee’s part that suggests impairment or influence of drugs or alcohol, c. a report of drug or alcohol use while at work or on duty, d. information that an employee has tampered with drug or alcohol testing at any time, e. negative performance patterns, or f. excessive or unexplained absenteeism or tardiness”
• Post-accident testing
• Random testing
• Scheduled, fitness-for-duty, return from leave and other periodic testing
• Post-rehabilitation testing¹³

With respect to random, scheduled, fitness-for-duty, return from leave and other periodic testing, public employers may only conduct such testing on the following employees:

• Police or peace officers
• Employees with drug interdiction responsibilities
• Employees who are authorized to carry firearms
• Employees who are engaged in activities that directly affect the safety of others
• Employees who are working for a public hospital
• Employees who work in direct contact with inmates in the custody of the Department of Corrections or work in direct contact with juvenile delinquents or children in need of supervision in the custody of the Department of Human Services¹⁴

An employer who wishes to conduct drug testing in one or more of the above categories must “first adopt a written policy setting forth the specifics of its drug or alcohol testing program[.]”¹⁵ The policy may include such topics as a statement of the employer’s policy respecting drug or alcohol use by employees; which applicants and employees are subject to testing; circumstances under which testing may be requested or required; substances that may be tested (stating “drugs and alcohol” is sufficient); testing methods and collection procedures (which are addressed in great detail in the act and usually, but not always, are written into the methodologies of reputable labs); consequences of refusing to undergo testing; potential adverse personnel action which may be taken as a result of a positive test result; the ability of an applicant and employee to explain, in confidence, the test results; the ability of an applicant and employee to obtain copies of all information and records related to that individual’s testing; confidentiality requirements; and appeal procedures if any.¹⁶

Employees must be provided at least 10 days’ notice of a new policy or a change to an existing policy, and a copy must be provided to all applicants upon accepting employment with the employer.¹⁷  Employers who violate the act may be held liable for twice an employee’s lost wages, costs and attorney’s fees.¹⁸

Prior to 2011, the act required Oklahoma employers to include an employee assistance program (EAP) in order to have a valid drug and alcohol testing program.¹⁹ That requirement has been repealed by the Legislature. While employers may still provide EAPs on a voluntary basis, the presence of an EAP in a private employer’s policy is frequently a sign the policy has not been revised in several years and should be reviewed and updated as needed. State employees may avail themselves of the Oklahoma Employee Assistance Program administered by the Oklahoma Department of Mental Health and Substance Abuse Services.²⁰

Certain limited protections exist for employees identified as having used illegal drugs. The ADA prohibits discrimination on the basis of disability by employers with more than 15 employees. Its definition of an “individual with a disability” excludes any “employee or applicant who is currently engaging in the illegal use of drugs,” including marijuana. But the statute provides a “safe harbor” for any employee who:

• Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;
• Is participating in a supervised rehabilitation program and is no longer engaging in such use; or
• Is erroneously regarded as engaging in such use, but is not engaging in such use except that it shall not be a violation of [the ADA] for a covered entity to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in paragraph 1) or 2) is no longer engaging in the illegal use of drugs[.]²¹

Notwithstanding the foregoing, the ADA provides an employer “may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds for other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee[.]”²²

The implementing regulations of the Family and Medical Leave Act (FMLA), which applies to certain employers with 50 or more employees, permits employees who are absent from work for substance abuse treatment for themselves or family members to avail themselves of FMLA leave but not employees who are absent because of substance abuse itself.²³ The regulations contain the following caveat:

Treatment for substance abuse does not prevent an employer from taking employment action against an employee. The employer may not take action against the employee because the employee has exercised his or her right to take FMLA leave for treatment.  However, if the employer has an established policy, applied in a non-discriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance abuse, pursuant to that policy the employee may be terminated whether or not the employee is presently taking FMLA leave.²⁴

Once again, the existence of a well-drafted drug and alcohol policy is paramount for employers to establish compliance with state and federal law.

MEDICAL MARIJUANA: A NEW FRONTIER

As he wraps up his investigation, Dwight Schrute asks his colleagues a number of intrusive questions about prescription medications they are taking. Dwight’s inappropriate questions²⁵ highlight a new area confronting Oklahoma employers. In June 2018, 57% of Oklahoma voters approved State Question 788, which legalized medical marijuana. Initially, the law provided broad protections for employees using medical marijuana:

Unless a failure to do so would cause an employer the potential to lose a monetary or licensing-related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either:

1)  The status of the person as a medical marijuana license holder; or

2)  Employers may take action against a holder of a medical marijuana license if the holder uses or possesses marijuana while in his or her place of employment or during the hours of employment. Employers may not take action against the holder of a medical marijuana license solely based upon the status of an employee as a medical marijuana license holder or the result of a drug test showing positive for marijuana or its components.²⁶

Although the above provision remains in force, the Legislature’s 2019 Unity Bill clarified the law and provided additional protections for employers as follows:

Unless otherwise required by federal law or required to obtain federal funding:

1. No employer may refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of such applicant’s or employee’s status as a medical marijuana licensee; and
2. 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 (defined as “a result that is at or above the cutoff concentration level established by the United States Department of Transportation or Oklahoma law regarding being under the influence, whichever is lower”)²⁷ unless:
   1. the applicant or employee is not in possession of a valid medical marijuana license,
   2. the licensee possesses, consumes, or is under the influence of medical marijuana or medical marijuana product while at the place of employment or during the fulfillment of employment obligations, or
   3. the position is one involving safety-sensitive job duties[.]²⁸

A “safety-sensitive” job is broadly defined as “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[.]”²⁹ It includes, without limitation:

• the handling, packaging, processing, storage, disposal or transport of hazardous materials,
• the operation of a motor vehicle, other vehicle, equipment, machinery or power tools,
• 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,
• performing firefighting duties,
• the operation, maintenance or oversight of critical services and infrastructure including, but not limited to, electric, gas, and water utilities, power generation or distribution,
• 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,
• dispensing pharmaceuticals,
• carrying a firearm or
• direct patient care or direct childcare.³⁰

It is highly advisable that Oklahoma employers designate positions as safety sensitive upfront and notify employees in those positions that they are prohibited from medical marijuana use as a result. Employers should review position designations periodically and update them as needed, similar to a periodic review of whether positions are exempt or non-exempt for purposes of the federal Fair Labor Standards Act.

An employer who violates any employee protections in Oklahoma’s medical marijuana laws may be held liable for twice an employee’s lost wages, costs and attorney’s fees.³¹ Nonetheless, the Unity Bill provides that nothing in Oklahoma’s medical marijuana laws shall:

• Require an employer to permit or accommodate the use of medical marijuana on the property or premises of any place of employment or during hours of employment;
• Require an employer, a government medical assistance program, private health insurer, worker’s compensation carrier or self-insured employer providing worker’s compensation benefits to reimburse a person for costs associated with the use of medical marijuana; or
• Prevent an employer from having written policies regarding drug testing and impairment in accordance with the Oklahoma Standards for Workplace Drug and Alcohol Testing Act.³²

The Unity Bill provided some protection and clarification for Oklahoma employers, but questions remain. For example, while employers may not discriminate against employees solely on the basis of possession of a medical marijuana card, does an employee’s possession of a card give an employer grounds to conduct “for-cause” testing under Oklahoma’s drug testing statute? Is the meaning of “under the influence” the same as having a positive test, or must additional factors exist?³³ What protections, if any, are afforded to employees using medical marijuana under the Oklahoma Anti-Discrimination Act (OADA)?³⁴ In the absence of future clarifying legislation, litigation will no doubt be necessary to provide definitive answers to these and other questions.

In spite of his valiant attempts (spoiler alert), Dwight Schrute never does figure out which of his colleagues dropped the joint in the parking lot. Like many Oklahoma employers, however, his investigatory efforts are (mostly) supported by Dunder Mifflin’s drug policy and applicable law. Ultimately, the most important step Oklahoma employers can take to navigate issues of employee marijuana use while remaining on the right side of the law is to have a detailed substance abuse policy that is clearly written, promulgated to all employees and consistently enforced.

ABOUT THE AUTHORS

Michael A. Furlong is a partner at Hartzog Conger Cason LLP. He practices in litigation and employment law and regularly speaks on employment law issues. He is a 2012 graduate of the OU College of Law.

Laura McConnell-Corbyn is a partner at Hartzog Conger Cason LLP. She practices in family law, litigation and employment law and is active in the labor and employment law sections of the Oklahoma and American bar associations. She is a 1987 graduate of the OU College of Law.

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1. Season two, episode 20, “Drug Testing” (April 27, 2006).
2. 40 O.S. §555(A)(1) (permitting a written “statement of the employer’s policy respecting drug or alcohol use by employees,” including marijuana), 63 O.S. §427.8(I)(3) (same), 63 O.S. §§427.8(H)(2) & (I)(1) (permitting an employer to prohibit an employee’s use, possession, consumption or being under the influence of marijuana on the employer’s premises or during work hours).
3. 42 U.S.C. §12114(c).
4. 41 U.S.C. §§8101 ff. (contractors), see also 48 C.F.R. §§223.5 ff. (U.S. Department of Defense contractors); 49 U.S.C. §31306 (transportation).
5. Exec. Order No. 12564, 51 Fed. Reg. 32,889 (Sept. 15, 1986).
6. See, e.g., Otis Eng’g Corp. v. Clark, 668 S.W.2d 307 (Tex. 1983) (holding that an employer who sent an intoxicated employee home unsupervised could be liable for a fatal accident involving the employee).
7. See Note 2, infra.
8. But see Charles W. Adams, “The Right of Privacy of Employees with Respect to Employer-Owned Computers and E-Mails,” 75 OBJ 2567, 2567-68 (Oct. 2, 2004) (discussing an intermediate appellate Texas case, which concluded searching an employee’s personal effects could give rise to liability under the tort of invasion of privacy (citing K-Mart Corp. Store No. 7441 v. Trotti, 677 S.W.2d 632 (Tex. App. 1984))).
9. 40 O.S. §200.
10. In re Verizon Wireless et al., 369 NLRB No. 108 (Jun. 24, 2020) (approving “a rule notifying employees that their employer may search their personal property on its premises”).
11. 40 O.S. §§551 ff.
12. Id. at §553(C), see also Note 3, infra.
13. 40 O.S. §554.
14. Id.
15. Id. at §555(A).
16. Id.
17. Id. at §555(B).
18. Id. at §563.
19. Id. at §561 (repealed by 2011 HB 2033).
20. See ok.gov/odmhsas/Additional_Information/Employee_Assistance_Program/index.html.
21. Id. at §12114(b), see Mauerhan v. Wagner Corp., 649 F.3d 1180, 1186-87 (10th Cir. 2011) (construing the safe harbor as not protecting an employee who had been drug free for only one month because “the drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem”).
22. Id. at §12114(c)(4).
23. 26 C.F.R. §825.119 (a).
24. Id. at §825.119(b).
25. See www.eeoc.gov/laws/guidance/questions-and-answers-enforcement-guidance-disability-related-inquiries-and-medical (last accessed Oct. 15, 2020) (prohibiting employers from asking employees what prescription drugs they are taking, except “[i]n limited circumstances … employers may be able to ask employees in positions affecting public safety about their use of medications that may affect their ability to perform essential functions and thereby result in a direct threat.”).
26. 63 O.S. §425(B).
27. Id. at §427.8(K), see also 49 C.F.R. §40.87 (setting the U.S. Department of Transportation initial test cutoff at 50 ng/mL for initial testing and 15 ng/mL for confirmatory testing), 47 O.S. §11-902(A) (prohibiting “any amount” of marijuana).
28. Id. at §427.8(H).
29. Id. at §427.8(K).
30. Id.
31. Id. at §427.8(J).
32. Id. at §427.8(I).
33. See Rose v. Berry Plastics Corp., 2019 OK CIV APP 55, 451 P.3d 195 (concluding, in a workers’ compensation case, that a claimant overcame by clear and convincing evidence the presumption of intoxication based on a positive post-accident test for marijuana in spite of the fact the claimant had smoked marijuana approximately 10 hours earlier), see also Whitmire v. Wal-Mart Stores, Inc., 359 F.Supp.3d 761, 788-92 (D. Ariz. 2019) (granting sua sponte summary judgment to an employee who consumed marijuana 12 hours before a work shift at which she was involved in an accident and had a positive post-accident test because the employer had no evidence she was impaired at the time of the accident).
34. See Robert M. Kline, “Courts are Siding with Employees who Use Medical Marijuana,” Nat’l L. Rev., Vol. X, No. 289 (June 19, 2019), available at www.natlawreview.com/article/courts-are-siding-employees-who-use-medical-marijuana.