On March 14, Oklahoma Gov. Kevin Still signed into law the Oklahoma Medical Marijuana and Patient Protect Act. Better known as the medical marijuana “Unity Bill,” the law adds regulatory clarity to the state’s medical marijuana law, specifically as it relates to Oklahoma employers.
Oklahoma State Question 788
As you recall, on June 26, 2018, Oklahoma State Question 788 passed legalizing the cultivation, use and possession of marijuana for medical purposes in Oklahoma. The statute impacted Oklahoma employers by restricting them from taking action against applicants or employees because they possessed a valid Oklahoma medical license, or because a license holder tested positive for marijuana.
Under State Question 788, employers are able to take action against employees using, possessing or being under the influence of marijuana in the workplace, including the physical building of the company, the parking lot including the employee’s vehicle, and any assigned worksite of the company. Regardless, many employers had significant concerns about workplace safety under State Question 788.
The “Unity Bill” and Safety-Sensitive Positions
The “Unity Bill” mirrors the original law stating no employer may refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of such applicant or employee’s status as a medical marijuana licensee. However, in regards to positive drug tests, the law now states no employer may refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely based on the basis of a positive test for marijuana components or metabolites, unless:
- The applicant or employee is not in possession of a valid medical marijuana license
- The licensee possessed, consumes or is under the influence of medical marijuana or medical marijuana product while at the place of employment or during the fulfillment of employment obligations (there is not definition provided for “under the influence”)
- The position is one involving safety-sensitive job duties.
The law defines safety-sensitive as any job that includes tasks or duties that the employer reasonably believes could affect the safety and health of the employee performing the task or others. Several non-exclusive examples listed in the statute are:
- The handling, packaging, processing, storage, disposal or transport of hazardous materials.
- The 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.
- The operation, maintenance or oversight of critical services and infrastructure including, but not limited to, electric, gas, and water utilities, power generation or distribution.
- The 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.
While the safety-sensitive exception for medical marijuana is a step in the right direction for maintaining safe workplaces in Oklahoma, it’s essential that employers give thoughtful consideration as to if and why a position is safety-sensitive before taking action against an employee or applicant with a valid license.
The “Unity Bill” and Positive Drug Tests
While employers can now take action against applicants or employees in safety-sensitive positions who test positive for marijuana components or metabolites, the act does outline what constitutes as a positive drug test for marijuana.
“A positive drug test for marijuana components or metabolites means a result that is at or above the cutoff concentration level established by the United States Department of Transportation or Oklahoma law regarding being under the influence, whichever is lower.”
It’s important that employers are aware of these cutoff concentration levels before taking action against applicants or employees who test positive for marijuana.
The “Unity Bill” and Employees Under the Influence
Under State Question 788 it was assumed action could be taken against employees under the influence in the workplace; However, it was not explicitly stated. The “Unity Bill” provides certainty listing the below as one of the exceptions to refusing to hire, discipling, discharging or penalizing an employee who tests positive for marijuana:
“The licensee possessed, consumes or is under the influence of medical marijuana or medical marijuana product while at the place of employment or during the fulfillment of employment obligations.”
“Under the influence” is not defined in the bill making it essential that supervisors have completed a reasonable suspicion training course. These courses will educate supervisors on the signs, symptoms and indicators of substance abuse while also reducing liability in sensitive situations. You can enroll in TEAM’s online course here.
The new law will take effect 90 days after the close of the legislative session (likely mid to late summer of 2019). Employers should take this time to prepare for the change by updating their policies, consulting with their legal counsel, examining and classifying their safety-sensitive positions and ensuring supervisors have completed reasonable suspicion training.