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Q&A: Medical Marijuana and the Construction Industry

Sam Newton

Samuel D. Newton is an attorney practicing in Construction, Health Care, and Oil and Gas Law.

In this article, attorney Samuel D. Newton discusses procedures Oklahoma construction industry employers need to develop with the legalization of medical marijuana.

With the passage of State Question 788 and the decision by the Governor not to call a special session, many of the ancillary questions regarding the impact of medical marijuana will remain unanswered until the next legislative session in 2019. But, in jobs where safety is key, such as construction, employers will need to develop procedures now to ensure that they are complying with safety rules and regulations as well as not stepping on an employee’s rights.

Q: How does the passage of State Question 788, medical marijuana, affect my safe work site and drug free policies?

A: The provisions of State Question 788 provide that an employer can take action against an employee who uses or possesses medical marijuana at the place of employment or during work hours. Thus, a contractor’s safe work site policy that prohibits the use of drugs or alcohol on the job is allowable under the law. However, unless an employer can show an imminent risk of losing a monetary or licensing benefit under federal law or regulation, an employer cannot refuse to hire, terminate, or otherwise discriminate against an employee simply because the employee has a medical marijuana card.

Q: If one of my employees with a medical marijuana card is “high” on the job can I still terminate him or her?

A: Maybe. Contractors will need to carefully differentiate between being impaired at work (ie, under the influence of marijuana and its attendant effects) and testing positive for marijuana although the employee may not be impaired. Unlike alcohol, scientific research has not been able to put a specific number on the THC levels (the compound in marijuana that makes one “high”) that impairs a person’s ability to drive or work safely—and THC may appear in a blood or urine screen well after it is consumed. So, unless the legislature choses a legal level of THC, the key will likely be whether, based on an objective observation, the employee was able to safely function.

Q: My company is working on federal projects, how can I mesh the state law requirements and federal law requirements?

A: Federal law still considers marijuana to be a Schedule I Narcotic under the Controlled Substances Act. Thus it is against federal law to consume or possess marijuana, medical or not. Additionally, most, if not all, federal projects are subject to the federal Drug Free Workplace Act which requires employers to have a drug free work place policy prohibiting the unlawful possession or use of drugs in the workplace and make an ongoing good faith effort to maintain a drug free workplace. These policies include requiring the employee to report to the employer and the employer to report to the contracting agency any workplace criminal drug conviction. However, the distinctions are fine and the interplay between federal law and the imminent risk of losing federal contracts or licensing has yet to be defined by Oklahoma or Federal courts and not by the federal or state government.

Business websites under legal pressure

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on May 10, 2018.


Kathryn Terry

The emphasis of Kathryn D. Terry’s litigation practice is in the areas of insurance coverage, labor and employment law and civil rights defense. She also represents corporations in complex litigation matters.

By Phillips Murrah Director Kathryn D. Terry

The Americans with Disabilities Act prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations, communications, and access to government programs and services.

The third section of ADA, Title III, addresses places of public accommodation, such as retailers, hospitals and state agencies. Under these rules, and in general, places of business are obligated to provide access to physical locations in the form of wheelchair ramps, signs that feature braille, and other means by which patronage of businesses is made possible for disabled persons.

Currently, similar attention is being focused on websites, as many businesses offer information and opportunities and conduct commerce via their website. Lawsuits are being brought claiming that these websites should be fully usable for persons with disabilities, just like brick-and-mortar locations.

To address Title III compliance, the World Wide Web Consortium developed an evolving set of standardized guidelines for improving accessibility to website content. The most recent, widely accepted version is called Web Content Accessibility Guidelines 2.0 AA, commonly referred to as WCAG 2.0 AA, which recommend, among many suggestions, text alternatives to graphics for visual disabilities, and captions to audio for those with hearing impairments.

Within the past few years, growing exponentially in 2017, lawsuits on behalf of disabled persons have been filed claiming website-related violations of ADA Title III. Recently, the lawsuits have been coming in waves, with online retailers being the first obvious targets, followed by online financial institutions, such as banks and credit unions, both large and small.

While there are no laws mandating WCAG 2.0 AA compliance at this time, the absence of any regulatory requirement does not shield businesses from ADA liability under Title III. Most businesses that have more than 15 full-time employees are subject to the ADA, and even if a business has less than 15, Oklahoma’s state law still applies.

However, in Oklahoma, there is a new statute that requires prior notice and an opportunity to cure the website issues in advance of any litigation under state law only. Businesses should consider this statute carefully if they receive a demand or lawsuit.

Many businesses are smartly getting ahead of this issue by reviewing their websites to identify potential accessibility barriers and implementing WCAG 2.0 AA guidelines as part of regular IT upgrades.

Kathryn D. Terry is a director at the law firm of Phillips Murrah.

Sharp spike in EEOC lawsuits

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on October 5, 2017.


Byrona J. Maule is a Director and litigation attorney as well as Co-Chair of the Firm’s Labor & Employment practice group. She represents executives and companies in a wide range of business and litigation matters with a strong emphasis on employment matters.

By Phillips Murrah Director Byrona J. Maule

Fall is a time of change. But this fall, the transition from summer isn’t the only change we’re experiencing. This fall has also brought extraordinary action from the Equal Employment Opportunity Commission. Starting in July, the EEOC has filed a flurry of federal lawsuits against both private and public employers.

In July 2017, the EEOC filed 20 lawsuits, compared to eight in July 2016, according to EEOC.gov’s announcements. At first, I thought this was some type of anomaly, but it continued into August 2017 with another 20 lawsuits filed, compared to eight last August. In September, they filed a whopping 69 lawsuits, as opposed to 22 in September 2016. To date, the EEOC has filed 241 lawsuits in 2017, compared to 86 in all of 2016. With three months left in 2017, there is no reason to believe the rest of 2017 will trend any differently.

Other changes in the EEOC’s activity include an inclination to file suit against an employer in a single plaintiff case, as opposed to lawsuits in which the outcome would have a broad impact on society. The EEOC’s 2012-2016 Strategic Plan emphasized using litigation mechanisms to identify and attack discriminatory policies and other instances of systemic discrimination. This emphasis seems to have waned.

Considering the life cycle of an EEOC lawsuit from charge to the EEOC’s decision to file a lawsuit takes multiple years, this sharp spike in the number of merit lawsuits being filed does not indicate that workplace behavior has drastically changed in recent months. Rather, the change appears to be in the decision-making process of the EEOC when deciding if it is going to file a lawsuit and what types of lawsuits the EEOC pursues. In one recent case involving Home Depot, the EEOC filed charges despite the company’s position it had reached agreement with the EEOC on the major terms of a settlement.

What does it all mean? It is difficult to know at this point. The real significance for employers is there are significantly more lawsuits being brought by the EEOC in 2017 than at any time between 2012 and 2016. Employers need to be very aware of this, and approach EEOC charges with increased attention.

Byrona J. Maule is a partner and co-chair of the labor and employment practice group at Oklahoma City-based law firm Phillips Murrah.