Q: Will it be legal for employers in any case to terminate employees judged to be under the influence if they meet the state's requirements for using medical marijuana? If so, under what circumstances?

A: The impact State Question 788 will have on the way employers handle drug testing and possession of illegal drugs in the workplace will be minimal. Employers are still permitted to drug test employees pursuant to state and federal law and terminate employees for possession of illegal drugs on company property. State Question 788, however, will have a major impact on how employers handle a positive test for marijuana. Currently, the law is black and white. If an employee fails a drug test for any reason, the employee is subject to immediate termination. Under State Question 788, however, the analysis cannot end there because State Question 788 protects employees that have a valid medical marijuana license from discrimination. Specifically, State Question 788 prohibits an employer from terminating an employee solely for testing positive for marijuana. This new, gray area will require employers to review and modify their current drug testing policy as it relates to a positive test for medical marijuana.

A: Yes. An employer is still permitted to terminate an employee that is impaired at work, regardless of whether the employee has a medical marijuana license or not. While it is not clear if such a termination is specifically permitted under State Question 788's prohibition of using medical marijuana at work, State Question 788 only bars an employer from basing a termination decision on the employee's status as a license holder or solely for failing a drug test. This means an employer can terminate an employee if it has some evidence that the employee was impaired at work. Under those circumstances, the termination decision would be based on factors other than license holder status or a positive test. As a best practice, the evidence of impairment should be documented and objective, e.g., impaired motor skills or speech, poor concentration, dilated pupils, etc.

Q: Will medical marijuana use fall under the Americans with Disabilities Act? If so, what allowances might employers have to make for licensed marijuana use?

A: The use of medical marijuana is not currently protected under the American with Disabilities Act (ADA). Marijuana — medical or not — is still a Schedule I drug under the federal Controlled Substance Act and is therefore illegal in the eyes of the federal government. The ADA does not cover the use of illegal drugs. As a result, the courts that have ruled on this issue have held that the use of medical marijuana is not covered by the ADA. However, some courts have ruled that the use of medical marijuana is covered under state law that extends the same protections as the ADA. The state equivalent in Oklahoma is the Oklahoma Anti-Discrimination Act, which offers the same protections as the ADA to disabled employees. It is yet to be determined if an Oklahoma court, like some courts in other states, will rule that the use of medical marijuana is covered by the Oklahoma Anti-Discrimination Act.

PAULA BURKES, BUSINESS WRITER