Since the enactment of the federal Controlled Substances Act in 1970, marijuana has been classified as a Schedule I drug, a category reserved for drugs deemed to have no currently accepted medical use, a high potential for abuse, and the potential to create severe dependence. Heroin, LSD, peyote, and quaaludes are other drugs that fall under the highly restrictive Schedule I classification. Late last year, President Trump issued an executive order entitled “Increasing Medical Marijuana and Cannabidiol Research,” which directed the U.S. Department of Justice to expedite the process of reclassifying marijuana to the lesser Schedule III category, alongside drugs like ketamine and anabolic steroids.
Perhaps not surprisingly, the announcement — notably marking a historic shift in federal policy as it pertains to cannabis in more than 55 years — 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 executive order criticized 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 drug reclassification is to expand medical marijuana research – not to revamp workplace issues concerning marijuana. Once the process is completed and marijuana is reclassified as a Schedule III drug under federal law, employers should keep the following 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.
As the federal government moves closer toward reclassifying marijuana, there are a couple of issues Oklahoma employers should anticipate. First, state law currently 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. Second, U.S. Department of Transportation regulations only allow testing for Schedule I and Schedule II drugs. Companies that have employees who are subject to DOT testing should be on the lookout for any revisions to the DOT testing regulations after marijuana is reclassified to Schedule III.
To prepare for the impending reclassification, Oklahoma employers should add these suggestions to their ever-growing 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.
