For years, marijuana has been classified as a Schedule I drug under the federal Controlled Substance Act. Heroin, LSD, peyote, and quaaludes are other drugs that fall under the Schedule I classification. In December, President Trump issued an executive order entitled “Increasing Medical Marijuana and Cannabidiol Research.” The order directed the U.S. Department of Justice to expedite the process of reclassifying marijuana to the lesser Schedule III category. Perhaps not surprisingly, the announced change triggered widespread social media discussions and rampant misinformation. As a result, some employees are under the mistaken belief that marijuana will soon become “more legal” and that changes to workplace marijuana rules and employers’ drug testing processes will follow.
Nothing could be further from the truth.
The President’s order criticizes the federal government’s “long delay in recognizing the medical use of marijuana.” Noting its potential value with chronic pain and chemotherapy side effects, the stated purpose of the reclassification is to expand medical marijuana research – not to revamp workplace issues concerning marijuana. Once the process is completed and marijuana is reclassified under federal law, keep in mind:
- Marijuana will not be “legalized” under federal law;
- Oklahoma’s medical marijuana law will be unchanged;
- Oklahoma employers may continue to prohibit employees from possessing or using marijuana while working;
- Oklahoma employers may continue to prohibit employees from being impaired by marijuana while working; and
- Oklahoma employers may continue to test employees for marijuana in accordance with a substance testing policy that follows Oklahoma law.
There are a couple of issues we should anticipate. Currently, Oklahoma law does not require an employer to accommodate an employee’s use of medical marijuana while working. Don’t be surprised if reclassification of marijuana by the federal government causes employees with medical marijuana licenses to challenge Oklahoma’s “no accommodation” rule and seek to use medical marijuana while working.
U.S. Department of Transportation regulations only allow testing for Schedule I and Schedule II drugs. If you have employees who are subject to DOT testing, watch for any revisions to the DOT testing regulations after marijuana is reclassified to Schedule III.
In preparation for marijuana’s impending reclassification, these suggestions should be added to your ever-growing HR to-do list:
- Make sure you have “no possession,” “no use,” and “no impairment” workplace policies that cover marijuana;
- If you test for drugs and alcohol, review your testing policy to see that it follows Oklahoma’s testing laws; and
- When appropriate, designate positions that are safety-sensitive. This can prove important when an employee challenges testing results or discipline related to marijuana.
