On March 12, 2019, Oklahoma Governor Stitt signed into law the Oklahoma Medical Marijuana Use and Patient Protection Act. The Act, better known as the medical marijuana “Unity Bill,” amends the state’s medical marijuana law to create a system for implementing dispensary licenses and to amend and clarify who must be accommodated in the employment context if they are medical marijuana users.
Oklahoma voters passed a state ballot measure in June 2018 to implement a medical marijuana law. Moving swiftly, the state began certifying medical marijuana users in August 2018 and reports more than 60,000 patients have been certified to date. The ballot provision’s passage initiated the creation of a working group to devise regulations supporting the new medical marijuana industry in Oklahoma. The “Unity Bill” is the result of this effort, and is projected to take effect the end of August 2019.1
Balancing Patient Protections and Safety Concerns
The Unity Bill was intended to bring together members of law enforcement, business, and medical marijuana patients by creating a system to regulate patients and businesses. The group also sought to protect the public from dangers posed by those impaired by medical marijuana working in “safety sensitive” jobs.
Limits on Discipline in the Workplace
The original Oklahoma ballot initiative prohibits employers from “discriminating” against any worker in the terms and conditions of employment because of the individual’s status as a medical marijuana license holder or solely based on the results of a drug test positive for marijuana or its components. The Unity Bill includes, in Section 8(h), this bar on employer adverse action based solely on an individual’s status as a medical marijuana licensee. Employers continue to be prohibited from disciplining employees or refusing to hire applicants only because they tested positive for marijuana, unless the applicant or employee does not have a valid medical marijuana license. As in other jurisdictions with medical marijuana laws, employers can continue to prohibit workers from using or possessing on premises, or working while under the influence of marijuana or marijuana products.
Permissible Limits on Safety-Sensitive Work
From an employer’s perspective, the most significant change to the law may be the addition of explicit permissions to take medical marijuana use into consideration when the applicant or employee holds, or will hold, a position with safety-sensitive job duties. In that case, the employer can decline to employ the individual, or take other action. The Unity Bill defines safety-sensitive jobs as those with the following job duties:
- working with or transporting hazardous materials;
- operating motor vehicles, other vehicles, equipment, machinery or power tools;
- repairing, maintaining or monitoring heavy equipment or manufacturing processes if a malfunction could result in injury or property damage;
- operating, maintaining or supervising critical infrastructure such as utility services;
- working with volatile or flammable materials;
- dispensing pharmaceuticals;
- carrying firearms; or
- providing direct patient care or direct child care services.
This list is not exhaustive.
What Does Under the Influence Mean?
For workers in jobs that are not conventionally safety-sensitive, the law nevertheless permits employers to take adverse action against workers who come to work impaired. Unfortunately, nowhere does the new law define what “under the influence of medical marijuana” means. The Unity Bill does reference the Oklahoma Standards for Workplace Drug and Alcohol Testing Act, however, which lists the circumstances in which an employer may conduct “for-cause” testing, and in that sense, provides some guidance on the types of observations that might lead an employer to believe that an employee was under the influence of marijuana at work.
The Unity Bill clearly states that employers are never compelled to allow marijuana use during working hours or on the premises, or to reimburse employees for costs associated with the use of medical marijuana. Employers also, again, have delineated rights to create a written policy regarding drug testing and “impairment” as provided under the Oklahoma Standards for Workplace Drug and Alcohol Testing Act. The new law also did not disturb the provisions of the 2018 Oklahoma medical marijuana law allowing discriminatory action if a failure to discriminate would cause an employer to “imminently lose a monetary or licensing related benefit under Federal law or regulations.”
Individuals who feel they have been discriminated against in employment because of their medical marijuana use have the same remedies as those set forth under the Workplace Drug and Alcohol Testing Act. Such remedies include a civil action for, among other things, lost wages and liquidated damages.
Recommended Next Steps: Policy Revisions, Training and Technical Assistance
Businesses with employees in Oklahoma should review their drug use and testing policies to ensure that they are aligned with Oklahoma’s medical marijuana laws. Nevertheless, for those already struggling with whether to place workers who use medical marijuana in sensitive roles, the new law will provide welcome relief.
1 H. B. 2612, 2019 Reg. Sess. (Okla. 2019).