Understanding Employer Actions for Failing Cannabis Drug Test
Hello, this is Jesse Kovacs, I’m an Oklahoma cannabis business attorney working with the OK Cannabis Law Office, and today we’re going to ask, I took a drug test with my employer and did not pass for cannabis. Can my employer take action against me? And the answer to that question is a little complicated, generally no, just testing positive as the default rule is no, they cannot take any adverse action against you, but there are exceptions.
So for example, if it comes to your employer’s knowledge that you do not actually possess a valid medical marijuana license, then that is a reason that they could use to take adverse action against you for failing a drug test, when you say failing. But another exception exists where if you were found to have possessed or used medical marijuana, either on business property or during business hours while you were carrying out business duties, then the employer has the ability to take adverse actions against that person.
Exceptions to Consider
Finally, the most applicable one to our clients that we see is if your job duties include safety, or if your employment position contains safety sensitive job duties, right? And these are specifically listed out in statute. The statute is 630S427.8 subsection K. And if you look at this subsection, it’ll tell you what safety sensitive generally means.
We’re talking about handling, moving, storing hazardous materials. The operation of a motor vehicle is a big one. So if you drive regularly as part of your job duties, that can be something that will be safety sensitive. Same if you’re working equipment, you know, machinery, power tools, stuff like that. If you’re involved in the repairing, maintaining, or monitoring the performance or operation of any equipment, machinery, or manufacturing process, where if it malfunctions, it could cause injury, personal injury, or property damage, that would be a safety sensitive job duty.
We’re also talking about firefighting duties. That’s pretty straightforward. The operation, maintenance, or oversight of critical services and infrastructure. So if your job is involved in electric, gas, water utilities, power generation, or distribution, and you are involved in the maintenance or oversight of those things, then that will be considered safety sensitive. Also they have 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.
So if you’re transporting around things that can explode, things that are dangerous, chemicals, stuff like that, things that if it were not handled properly, again, it would likely cause personal injury or property damage, it’s going to be considered safety sensitive. And then finally we have dispensing pharmaceuticals, if you’re a pharmacist or you’re involved in a pharmacy, that’s safety sensitive. If you have to carry a firearm while you’re working on the job, that counts. And then finally we have direct patient care or direct childcare.
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So if you are directly involved in caring for somebody else’s health, either in an actual physician relationship or simply as a babysitter or something like that, if you’re looking after somebody, if somebody else is in your responsibility for protection, that’s going to be considered safety sensitive as well. And so just because there are work safety sensitive duties does not mean you cannot be a license holder and have that job, but it does mean that if you take a drug test with that employer and you test positive for marijuana, they can take adverse actions against you. They don’t have to, but they can.
If this information was helpful to you, you can find others like it at our website, oklahomamedicalmarijuana.attorney.