Oklahoma's Medical Marijuana Laws

As we gather new information regarding Oklahoma medical marijuana laws and regulations we will continue to add to this page. The last update was on 09/02/2019.

This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.

On Tuesday, June 26, 2018, Oklahoma state residents legalized 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.

SQ 788 gave Oklahoma one of the least restrictive medical marijuana programs in the country, with no qualifying condition needed for a medical marijuana “prescription”. There is currently no set date for when medical marijuana will be available in the state.

March 2019 saw the passage of the “Oklahoma Unity Bill”, geared at providing further clarification as to medical marijuana in the state, as well as beginning to put into place a regulatory framework. In addition to legislative efforts to fine tune the state medical marijuana, there are a number of lawsuits pending against the state for various reasons pertaining to the medical marijuana program.

Medical Marijuana in the Workplace

SQ 788’s original section on medical marijuana in the workplace has been amended to read:

“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 if the holder uses or possesses marijuana while in his or her 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.”[1] (emphasis added)

The Unity Bill, effective as of August 29. 2019, brought about further clarification for employers in Oklahoma. It reiterates that employers cannot take adverse employment action against applicants or employees based solely on their status as a medical marijuana licensee.[2] Additionally, further clarification is provided in terms of medical marijuana licensee’s positive drug tests for marijuana and/or its components.

[1] Oklahoma Stat. 63-425(B)

[2] Oklahoma Stat. 63-427(H) 1

While employers are not generally able to take adverse employment action based on a licensee’s positive drug test for marijuana or its metabolites, there do exist a number of exceptions, outlined in the Unity Bill. Namely, if the individual is not actually in possession of a valid medical marijuana license, if the individual consumes, possesses, or is under the influence of medical marijuana or medical marijuana product while at work or while fulfilling employment obligations, or if the position is designated as safety-sensitive as defined in the law. [1]

Oklahoma’s law includes a safety-sensitive carve-out, and employers are provided with quite a detailed list of positions that qualify. The list covers jobs that include:

• the handling, packaging, processing, storage, disposal, or transport of hazardous materials;
• the operation of a motor (or other) vehicle;
• the operation of equipment, machinery, or power tools;
• the repairing, maintenance, or monitoring of equipment, machinery, or manufacturing process, the malfunction of which could result in injury or property damage
• firefighting duties;
• the operation, maintenance, or oversight of critical services and infrastructure such as electric, gas, water utilities, or power generation/distribution;
• the extraction, compression, manufacturing, handling, packaging, storage, disposal, treatment, or transportation of volatile or potentially volatile, flammable, or combustible materials, elements, chemicals, or any other highly regulated component;
• dispensing pharmaceuticals;
• carrying a firearm;
• direct patient care;
• childcare. [2]

Additionally, other jobs that include “tasks or duties that the employer reasonable believes could affect the safety and health of the employee performing the task or others” could potentially be included in the safety-sensitive carve-out.

Employers are not required to permit or accommodate the use of medical marijuana during work hours or at the place of employment. Employers and insurers are not required to reimburse costs associated with medical marijuana use. Employers retain the right to have written drug and alcohol testing policies in accordance with other applicable state laws. [3]

[1] Oklahoma Stat. 63-427(H)

[2] Oklahoma Stat. 63-427(K)

[3] Oklahoma Stat. 63-427(I)

Can Oklahoma Employers Still Test for and/or Discipline for Marijuana?

Employers are still within their rights to test employees in Oklahoma for marijuana, regardless of cardholder status. Nothing in the state medical marijuana law limits an employer’s right to test for marijuana and/or its metabolites.

Recreational use is not legal in the state. If an employee/applicant tests positive for marijuana and does not have a medical marijuana license, 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 license holding medical marijuana employee/applicant based solely on the presence of marijuana and/or its metabolites in a drug test. Neither SQ 788 as passed, the Unity Bill, 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 unless the individual used/possessed marijuana during work hours, was “under the influence”, or is in a designated safety-sensitive position.

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.

Medical Marijuana Moving Forward

Although some clarification has been provided for employers, it is likely that Oklahoma’s medical marijuana law will see further changes in the near future. Already at least one lawsuit has been filed since the passage of the Unity Bill that holds that it is unconstitutional.[1] Although there has been no progress as of yet on this case, there may be forced changes to the medical marijuana law should Callum v. Bates succeed in finding the law unconstitutional.

The Unity Bill brought much needed clarification to employers in Oklahoma as to their rights when it comes to medical marijuana using employees and applicants, however, there is still more clarification needed. Employers in Oklahoma should reach out to legislative representatives, the Department of Labor, and the OMMA, asking for further guidance pertaining to 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.

[1] Turner, Jet. “The current state of Oklahoma’s medical marijuana laws and what to expect in August.” O’Colly, 24 June 2019. Accessed 15 September 2019. http://www.ocolly.com/news/the-current-state-of-oklahoma-s-medical-marijuana-laws-and/article_e6fa6a9c-96ae-11e9-ab7c-dfce33d810f7.html.

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