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On Tuesday, June 26, 2018, Oklahoma state residents voted to legalize medical marijuana, passing State Question 788 (SQ 788) via ballot measure and leaving the legislature the task of fine tuning much of the state’s regulatory framework.
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As passed, SQ 788 gives Oklahoma one of the least restrictive medical marijuana programs in the country, with no qualifying condition needed for a medical marijuana “prescription”. A variety of medical marijuana licensing applications are already available on the Oklahoma Medical Marijuana Authority (OMMA) website, with the first applicants set to receive acceptance and/or denial letters as of early September. There is currently no set date for when medical marijuana will be available in the state.
As a state question, SQ 788 stands as law unless the legislative body passes legislation pertaining to SQ 788 that would change what was passed by the text of the question. Such legislation would supersede the contents of 788. The Oklahoma legislature has currently passed legislation pertaining to how marijuana “prescriptions” will work, as well as framework governing dispensaries, caregivers, patients, and more. There has yet to be legislation passed pertaining to employers and employee marijuana use in the workplace other than what was originally passed in SQ 788.
SQ 788’s section on medical marijuana in the workplace reads:
“Unless a failure to do so would cause an employer to imminently lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination, or imposing any term or condition of employment or otherwise penalize a person based upon either:
1. The person’s status as a medical marijuana license holder; or
2. Employers may take action against a holder of a medical marijuana license holder if the holder uses or possesses marijuana while in the holder’s place of employment or during the hours of employment. Employers may not take action against the holder of a medical marijuana license solely based upon the status of an employee as a medical marijuana license holder or the results of a drug test showing positive for marijuana or its components.” (emphasis added)
Employers are provided limited guidance via SQ 788 on what they can do if they have a card-holding medical marijuana employee in their workplace.
Employers are still within their rights to test employees in Oklahoma for marijuana, regardless of cardholder status. Nothing in SQ 788 limits an employer’s right to test for marijuana and/or its metabolites.
Broadly speaking, employers retain their rights to discipline and/or terminate for marijuana use in the workplace.
Recreational use is not legal in the state. If an employee tests positive for marijuana and does not have a medical marijuana card, an employer can terminate and/or discipline according to his/her drug-free workplace policy.
Employers are not permitted to discipline and/or terminate a cardholding medical marijuana employee based solely on the presence of marijuana and/or its metabolites in a drug test. Neither SQ 788 nor the Oklahoma state legislature have provided guidance for employers as to what could be used in conjunction with a marijuana positive test that would warrant disciplinary measures and/or termination for a medical marijuana user.
Medical marijuana cardholders are not permitted to bring marijuana to their place of work or use medical marijuana during their hours of work. Federally-regulated employers are permitted to stay in compliance with federal guidelines and should therefore act as such, regardless of state laws.
Oklahoma’s legislative session is not currently in session and Governor Fallin has stated that it is unlikely that she will call a special legislative session solely to discuss the state’s medical marijuana framework. As such, employers can expect to wait until at least February 2019 before any further guidance is offered, although there is no guarantee that legislators will address medical marijuana in the workplace as part of the legislative session. Numerous lawsuits pertaining to medical marijuana are currently active against the state and could slow down any legislative action that is needed.
Tom Bates, the Interim Commissioner of Health, shared in recent working group materials to state legislators that he believes that employer and employee rightspertaining to medical marijuana still need to be addressed via a potential statute change or other means1. This would indicate that Oklahoma legislators will, eventually, provide further clarification and guidance for employers.
Employers in Oklahoma should reach out to legislative representatives, the Department of Labor, and the OMMA, asking for further guidance about medical marijuana in the workplace. As more employers raise safety concerns, it is likely that the legislature will address these pertinent issues in a timely manner.
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