Oklahoma State Question 788's Impact on Employers

On June 26, 2018, Oklahoma voters approved State Question 788.  The measure amends the Oklahoma State Statutes to legalize the licensed use, sale, and growth of medical marijuana. While the Oklahoma legislature and the Oklahoma State Department of Health are expected to provide further guidance before the new law becomes effective on July 26, the new statutory language makes clear that employers will be prohibited from discriminating against both applicants and employees based solely upon an individual’s status as a medical marijuana license holder or a positive drug test result for marijuana or its components.

There are, however, important exceptions.  The anti-discrimination provision does not apply where an employer would “imminently lose a monetary or licensing related benefit under federal law or regulation.” Thus, employers that are operating under federal government contracts or are regulated by federal agencies should be excluded, at least with respect to regulated employees.  For example, truck drivers subject to U.S. Department of Transportation drug testing regulations may be disciplined or terminated if they test positive for marijuana regardless of their status as a medical marijuana license holder. Further, employers may still take action against employees, even those holding a medical marijuana license, if they use or possess marijuana while in the place of employment or during the hours of employment.

The new statutes require the Oklahoma State Department of Health to make an application for medical marijuana licenses available on its website by July 26, 2018. The statutes further require the Department of Health to review and approve or reject applications within fourteen (14) days of receipt. Accordingly, employers should anticipate applicants and employees may obtain medical marijuana licenses as soon as August 9, 2018.  Employers should act now to review and revise workplace drug and alcohol testing policies to ensure compliance with the new law. 

If you have questions or if you would like assistance revising your drug and alcohol policy, please do not hesitate to contact us.