American Oil and Gas Reporter - July 2018 - 117

ConventionCoverage: Oklahoma Independent Petroleum Association
tration, and remarked, "These past twothree years, we have lived off our drill
pipe inventories. Pretty much all that in-

ventory is gone, so we are going to have
to buy drill pipe over the next couple
years to replenish what we used during

the downturn. We are hearing 25-28 percent higher drill pipe prices. Those are
real costs for service providers."
r

Medical Marijuana Muddies Workplace
LAS COLINAS, TX.-Whether unintended or otherwise, a statewide referendum on medicinal marijuana in Oklahoma could have a profound effect on
workplace practices, a labor attorney advised the Oklahoma Independent Petroleum Association.
With the caveat that "a lot of the
things I am going to pinpoint for you
may very well be addressed by regulations," Adam W. Childers, co-chair of
Crowe & Dunlevy's Labor and Employment Practices Group, warned an OIPA
annual convention general session audience
on June 9 in Las Colinas that if passed
by voters on June 26, State Question 788
"will have a pretty dramatic impact on
the way we conduct drug testing in the
workplace."
(Editor's Note: SQ 788 was approved
June 26 by a reported 56 percent of Oklahoma voters.)
SQ 788, Childers explained, authorizes
medicinal marijuana use by licensed card
holders. One of the first problems with

State Question 788 has the potential to
have "a pretty dramatic impact on the
way we conduct drug testing in the Oklahoma workplace," Adam W. Childers, cochair of Crowe & Dunlevy's Labor and
Employment Practices Group, warns an
Oklahoma Independent Petroleum Association general session audience June
9 in Las Colinas, Tx.

the law, he remarked, is that the definition
of a prescribing physician is "fairly ambiguous," and rather than a specific list
of qualifying ailments, a marijuana prescription may be based on a "reasonable
and prudent decision by a physician."
"So there are some significant gaps, I
believe, in terms of who can prescribe
and how it will be prescribed," Childers
maintained.
More troublesome for employers, he
went on, SQ 788 "essentially says thou
shalt not take any overt action or otherwise discriminate against any medical
marijuana card holder for purposes of
hiring, firing or any other term or condition of employment."
"It is a very aggressive approach by
the framers of SQ 788 to create a protected
class," Childers opined. "This never has
happened in the state of Oklahoma, and
very few of the 30 states that allow recreational or medicinal marijuana use have
that kind of language."
And therein, he surmised, lays the
basis for the first major workplace legal
test of the new law. Childers pointed
out that Oklahoma had a public policy
tort, which essentially says even if there
is no law protecting specific behavior,
if there is strong public policy in support
of what an individual does or refuses to
do, he should be able to bring a public
policy tort.
Consequently, he predicted, the first
medical marijuana card holder who loses
his job because of marijuana use likely
will argue, "If the people of Oklahoma
are willing to pass a law that says you
shouldn't take adverse action against
someone who has a medical marijuana
card, that must be an enunciation of compelling state public policy."
Need To Corroborate
But while SQ 788 forbids terminating
an employee for having a medical marijuana card, or even testing positive for
marijuana, "nothing within the law says
you cannot terminate that individual for
being under the influence in the workplace," Childers advised OIPA.
Consequently, he said, "We are going

to be shifting the focus from whether or
not we have a positive test to whether
we can corroborate and substantiate a
positive influence on that individual in
the workplace. I promise you, this is a
step back in terms of how we have dealt
with these things."
Childers recalled that in 2012, one of
the standards for drug testing in Oklahoma
was reasonable suspicion, i.e., "You had
to have a witness or a physical phenomenon you could track."
He said that testing standard later was
lowered to "for-cause, which allows you
to test somebody for things such as unexplained absences or dips in job performance."
"I think we are going back in time,"
Childers evaluated. "You are going to
have to be extremely careful about firing
someone for a positive marijuana test if
you don't have the goods on them."
Finally, Childers said addressing safety-sensitive positions would be a major
issue for oil field employers. The card
holder protections in SQ 788 do not exempt safety-sensitive positions. "Those
who argued for passage say that will be
part of the regulations, and it may well
be. But at this point, there is nothing that
addresses safety-sensitive positions," he
advised OIPA.
"This is a matter of high priority for
all of you to make sure that question gets
addressed immediately."
r

Coming In August
Appalachian operators continue to
refine horizontal drilling and completion strategies to lower well costs
while maximizing productivities and
estimated ultimate recovery rates.
AOGR catches up to some of the
players leading the way in Marcellus
and Utica production growth to find
out what kinds of projects are on the
schedule as summer marches toward
autumn and the start of another winter heating season.
JULY 2018 117
American Oil and Gas Reporter - July 2018

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