Careful What You Wish For as You Just Might Get What You Deserve
People think that there have been only two world wide wars, WWI and WWII. They are wrong, the American Revolution set lose a world wide war that led Britain to face France, Holland, and Spain at sea, the nascent U.S. Government, revolts in India by the Muslims and Hindus, as well as a long siege of Gibraltar by the Spanish. Of all the combatants only the U.S. came out ahead. Holland lost colonies, the subcontinent of India remained under British rule for another 140 years, the Spanish and French lost massive amounts of ships, and France of course went through the French Revolution. England herself was badly battered and had to fight hard to hang onto her world wide colonies. And all because the English crown wanted to tax without representation.
We are seeing a parallel with the marijuana legalization movement. They were successful in Oklahoma in getting a “medical” marijuana state question passed but the legislative clean up of the law is likely to create some major headaches for both pot smokers and decent law abiding citizens alike. It is in fact very likely to wrap the police state controls even tighter around the state.
The 2018 primary was driven and decided by the vast numbers of new voters that turned out to vote for SQ 788, legalizing medical marijuana. The pot heads were ecstatic when it passed as it penalized employers if they fired or refused to hire an employee that tested positive for using pot unless they would lose benefits under federal law or if the pot head got caught with pot at work. That meant that the vast majority of employers were completely exposed to employees that were addicted or impaired and caused damages or harm at work, even for safety sensitive jobs. Employers were at risk if a pot head caused damage to themselves or a co worker or a customer.
So HB 2612 was filed that fixed many of the gaping holes in the state question. It was labeled the Unity bill and was signed into law on March 14th 2019. The advocates for SQ 788 actually used the argument that the SQ was left vague so that the legislature could flesh out the skeleton of 788. The new employer friendly law goes into effect on August 28th of this year. The law created common sense exceptions to the ban on employers considering pot use by employees. It allows companies to refuse to hire people for safety sensitive jobs and to discharge or discipline workers if they hold safety sensitive jobs and test positive for marijuana use. If an employer believes safety or health of the employee or others would be impacted they can deny the job to holders of medical marijuana permits. The list of exceptions is comprehensive yet not limited to:
- handling, packaging, processing, storage, disposal, or transport of hazardous materials;
- operation of a motor vehicle, other vehicle, equipment, machinery, or power tools;
- repairing, maintaining, or monitoring the performance or operation of any equipment, machinery, or manufacturing process, the malfunction or disruption of which could result in injury or property damage; performing firefighting duties;
- operation, maintenance, or oversight of critical services and infrastructure including, but not limited to, electric, gas, and water utilities, power generation, or distribution;
- 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;
- dispensing pharmaceuticals, or prepare or handle food;
- carrying a firearm or;
- direct patient care or direct child care.
So lets go through this.
- hazardous materials. That means any aerosols, carcinogens, cellulose nitrates, combustible fibers, combustible liquids, all sorts of compressed gases, all sorts of corrosives, all sorts of cryogenics, explosives, flammable liquids of all sorts, flammable solids, LPG and propane,anything toxic or an irritant, magnesium, peroxides, health hazard materials like blood or feces, radioactive items, and unstable or water reactives. That will include workers at a paint store, painters, hair spray or other flammable products, perhaps cigarettes or tobacco as they are carcinogens, any sort of wood dust or grain dust, compressed air of any type, liquid nitrogen or oxygen or products used in welding, people working in gas stations or mechanic shops, cooks of course that would be using natural gas, tire shop workers that will handle magnesium wheels and compressed air, animal care workers that might have a semen tank or be handling biological materials.
- truck drivers, cab drivers, Uber drivers, bus drivers,fork lift drivers, lawn care workers, heavy equipment operators, delivery drivers, anyone that works in a factory that handles or uses machinery of any sort or power tools of any sort. That would include people in dental labs, shoe repair shops if any still exist, warehouse workers, nearly all jobs require some sort of power tool if it is just a paint shaker at the Home Depot paint department.
- tool repairmen, elevator repairmen, electricians, plumbers, factory workers of any kind, farm hands, ranch hands, county workers that work on mowing or road repair, firefighters.
- linemen, utility workers of any sort, management or supervisors of power plants, water treatment plants, sewage treatment plants, internet service providers, cell phone service providers, security guards of all types.
- miners, trash haulers, garbage men, any sort of manufacturing worker in packaging or transport, anyone working around flammable or combustible materials like wood, grain, hay, or paper. That could include the bag boy at a local supermarket if any are still around.
- #druggists, all food workers including fast food or kitchen help of any kind. It could even impact dishwashers and bus boys who are indeed handling food and waste.
- carrying a firearm of any kind which would include law enforcement and security workers as well as firearm technicians and gun smiths. Even the store help that have to handle ammunition, cleaning fluids, gun oil, paper, or even dumping the trash, maybe even handling paper documents as they are combustible.
- nurses, doctors, hospital orderlies, janitors, dentists, x ray techs, dental hygienists, receptionists as they are handling medical records and could cause problems if they are impaired, day care workers, teachers that care for children, in addition to the combustibles they use in their job and any machinery such as copier, electric pencil sharpener, or lab equipment or supplies.
Pretty much, if an employer doesn't want to hire potheads they ought to be able to find a safety sensitive situation in the job at some point where an impaired worker might cause damage to property, to other workers, to customers, or to the product being produced. And if a job doesn't have a safety sensitive situation, it is easy enough to write a job description that includes a safety sensitive task. Here is an excellent source for information on the new law in Oklahoma.
What this says to the pot heads is that, yes, you got what you wanted and now employers can make you the pariah of the employment world. As long as you update your drug and alcohol testing policies prior to August 18th, or ten days before you begin enforcing the no pot use work place, you are covered. You should write job descriptions laying out what portions of the job are safety sensitive and that workers must be able to perform all aspects of the job to be considered for hiring or to remain employed. Make sure you have reasonable and articulate reasons for the safety sensitive tasks. Also put in the job descriptions the fact that there are safety sensitive tasks involved in the job and that no holder of a pot permit will be hired or retained. Check with your drug testing company and ensure that they are using the new cut toff levels for THC which is 15 ng/ml, about three times lower than the federal DOT level of 50 ng/ml.
You will want to make sure the managers and supervisors understand the new policy and the scope of safety sensitive jobs. Make clear that they cannot harass, discriminate, or retaliate against holders of medical pot permits as these addicts are now a protected class outside the safety sensitive exemptions. Be aware that the ADA doesn't cover a user of illegal drugs as federally marijuana is still illegal under federal law as users of illegal drugs do not qualify as an individual disability. These supervisors and managers need to be up to date on spotting impaired workers and documenting the impairment before requiring a costly drug test. You will need to get your new work policies to the workers, ask them to sign for the new policies, and explain the policy before strictly enforcing the policies in a uniform manner.
The golden lining of HB 2612 is that you will have a tool for quickly and safely eliminating under performing workers that test positive for THC. They have saliva tests that will show pot use in the last 24 hours, blood tests that can show pot use up to seven days in the past, or hair tests that can prove pot use three month's before. However that is for the federal standard of 50 ng/ml, the Oklahoma standard is three times lower. You should triple the expected times that a test can show evidence of pot us. There are ways of flushing the signs from your body but they also disrupt normal chemistry in the urine tests and show up as an attempt to fool the drug test. Here is a good primer on testing for weed and getting help for an addiction.
The end result for SQ 788 will be the establishment of a class of people that will become unemployable for most jobs. That will lower the wage level needed to hire workers for jobs that are not safety sensitive, although for the life of me it is hard to see what those jobs might be. A question that needs to be asked and legislated is if a person voluntarily puts themselves into this category are they then qualified to receive benefits such as unemployment or food stamps? The ADA rightly states that smoking weed disqualifies you from ADA protection and most public benefits ought to have the same requirement, a piss test to prove that you are drug free and able to obtain a job. In the end those marijuana addicts and perhaps even their care givers might find themselves in a permanent underclass due to their own choices and efforts to decriminalize what still remains a federally illegal drug.
The upside is that workers that are healthy both mentally and physically will command good wages as jobs become harder to fill. I was talking to a plywood supplier the other day about this issue and they said their largest problem is finding enough drug free workers to man the production line. And I have had Facebook conversations with weed addicts that used weed for such trivial things as headaches, backaches, even menstrual pain despite the fact that it could cost them their job. That is the mark of a true addict, willing to risk everything for their next high.
But the worst aspect of SQ 788 will be the effect on law enforcement. The three current tests for impairment are slow to effect and costly. Like a DUI stop, the cops will need a field sobriety test to prove the need for arresting the driver and taking them to a hospital or station for testing. Worse, the THC stays in the blood and saliva for long times, even smoking pot a month before will show up in many cases. What the pot heads have come up with is an intelligence based field sobriety test. You play a game and are scored on wrong answers, reaction time, completion time, and that score is compared to a baseline score. That means before you drive you have to play the game and establish a baseline score to compare against. That means you will need testing for THC before you take the test and that result becomes part of your baseline standard.
In online discussions, AKA poo flinging Facebook fights, the pot heads see no problem doing this. I suppose they go in stoned to take the test and might do better when they are pulled over or they are arrested for driving stoned to the police station to take the baseline test. Then cops are going to have to be equipped with the software and computers needed for the testing/game or whatever, trained to legally administer the tests, and either administer the test on the side of a dangerous highway or arrest the suspected impaired driver, impound their car, and take them back to the station house or hospital for the intelligence test. If that was all it was and the pot heads the only ones dealing with it I would say fine.
The problem is that the pot heads will scream discrimination when the legislature decides to force these baseline intelligence tests on the holders of medical marijuana cards. And that will be upheld in court and the answer will be forcing everyone to take the baseline intelligence tests to hold a license. Now Tommy the businessman is driving home from a long trip, tired and hungry, and he gets pulled over. Dull eyes, watery eyes, whatever symptoms potheads give off likely present, so Tommy gets arrested for suspicion of being under the influence of pot.
Now for a long time all kids are tested for IQ in school and that remains in their records. Yet it isn't found on normal criminal or driving records but not for long. Those baseline intelligence test scores will be done and stored and leaked. Then a firestorm erupts over certain segments of the population having lower scores or that someone can pay for a background search on you and pull up your intelligence score. Then insurance companies and mortgage companies start using the data to control their losses.
The unintended consequences of legalizing pot are just now popping up. Like the American Revolution, this shot was heard around the world and will have enormous consequences to our freedom and our pocketbook.
SQ788 was passed and the legislature should indeed follow the will of the people. They did, they created a safe harbor for the truly needy patients, the cancer patients, the elderly dying and in need of comfort, but those that voted for the state question also deceived themselves thinking it would legalize weed for common ailments and found out it did become legal but came with consequences.
