MARIJUANA REGULATION
State law allows business to refuse to hire applicants or discipline employees who use medical marijuana under certain circumstances
Vic Albert is a shareholder attorney at Ogletree Deakins. In March, Oklahoma Gov. Kevin Stitt, signed into law the Oklahoma Medical Marijuana and Patient Protection Act, more commonly called the “Unity Bill,” which clarifies the Oklahoma Medical Marijuana Act (OMMA) and takes effect Aug. 29. How do the OMMA and the Unity Bill regulate medical marijuana in the workplace?
The OMMA, and subsequently the Unity Bill, prevent employers from taking action against applicants or employ
ees solely on the basis of either their status as a medical marijuana license holder or on the basis of a positive test for marijuana. However, possession and use of medical marijuana while at work or on company property can still be prohibited by policy.
Does the Unity Bill change anything about Oklahoma law concerning medical marijuana?
Yes, the Unity Bill provides employers new protections that were previously unavailable under the OMMA. The law allows employers to refuse to hire applicants for safety-sensitive jobs or to discipline or discharge employees who work in safety-sensitive jobs if they test positive for marijuana, even if they have a valid license to use medical marijuana. The safety-sensitive job classification now provides a valid method for employers to curb the potential use of marijuana (even medical marijuana) by employees and to enhance a drugfree work environment.
How can employers determine which positions are considered “safety-sensitive jobs"?
According to the Unity Bill, safety-sensitive jobs are those with “tasks or duties the employer reasonably believes could affect the safety and health of the employee ... or others.” A non-exhaustive list of safety-sensitive job tasks examples is included in the law. A few of those examples include operating a company vehicle or company machinery, handling hazardous materials, dispensing pharmaceuticals, or rendering direct patient or child care. Employers with Oklahoma-based employees may want to identify job positions that fall into this broad, protected category. Once safetysensitive job positions are designated, employers should update their workplace drug testing policy to clearly state that safetysensitive job positions are excluded from medical marijuana coverage.
What is the timing if employers want to take advantage of the new law as early as possible?
Oklahoma law requires any employer which implements a drug or alcohol testing policy to provide employees at least 10 days' notice when it changes its policy. So that means that employees should receive notice of changes to policies in response to the Unity Bill no later than Aug. 19. In order for employers to best take advantage of these new protections, any changes to drug or alcohol testing policies should be made now. This will ensure that Oklahoma employers are able to better enhance a drug-free work environment when the law goes into effect on Aug. 29 and it will prevent any delay in the implementation of policy amendments due to late notice of the changes to employees.
How does the pending lawsuit questioning the constitutionality of the Unity Bill affect this?
The litigation challenging the new law is in the early procedural stages. There has been no ruling by a court stalling the effective date of the new law. So the law is set to go into effect on Aug. 29.