Oklahoma - Considerations for Marijuana in the Workplace

Medical
Marijuana Law:

Recreational
Marijuana Law:

Employer Concerns – Significant to Review

  • Nothing prevents an employer from establishing a written policy regarding drug testing and impairment in the workplace, as long as they are in compliance with Oklahoma’s drug testing laws.
  • Under Oklahoma Stat. 40-15-563, an employee has up to one year to claim the employer willfully violated the drug testing laws of Oklahoma which could result in penalties and fees.
  • Employers cannot take action against an applicant or employee (refuse to hire, discipline, discharge, or otherwise penalize an applicant or employee) solely based on their status as a medical marijuana card holder. However, employers can establish appropriate measures /requirements for positions that are safety-sensitive, defined as, (OK 63-427.8(K)(1)), “…tasks or duties the employer reasonably believes could affect the safety and health of the employee performing the task or others, but not limited to…” (refer to law for list of safety-sensitive positions).
  • Employers can take adverse action against medical marijuana patients if they use or possess marijuana at the workplace or during work hours.
  • An employer may not take action against a medical marijuana licensee based solely on a marijuana positive drug test unless:
    • the applicant/employee does not have a valid medical marijuana license;
    • the licensee possesses, consumes, or is under the influence in the workplace or during work hours; or
    • the licensee is in a safety-sensitive position (Oklahoma Statutes 63-427.8 K defines safety-sensitive).
  • Cutoff levels denoting a positive drug test mirror U.S. Department of Transportation or Oklahoma law, whichever is lower.
  • Oklahoma has no list of qualifying conditions, but instead a patient must receive a physician’s recommendation. According to SQ 788, “The physician must recommend a marijuana license according to the accepted standards a reasonable and prudent physician would follow for recommending or approving any medication.”
  • It is a crime in Oklahoma if the driver has any detectable level of THC and/or its active metabolites in their blood, urine, or saliva. Further, drivers are deemed to have given consent to submit to a chemical test (blood, saliva, urine) to determine the amount of drugs in their system.

Testing

  • Although very employer-friendly, Oklahoma does have a drug testing law with precise details. An employer is subject to these requirements for any testing he or she is doing beyond any they are required to do under federal law or regulation to which they are subject.
    • Under Oklahoma Stat. 40-15-563, an employee has up to one year to claim the employer willfully violated the drug testing laws of Oklahoma which could result in penalties and fees.

Hiring/Termination

  • An employer may not take action (refuse to hire, discipline, discharge, or otherwise penalize an applicant or employee) based solely on the individual being a medical marijuana licensee.
  • See Significant above.

Discipline

  • An employer may not discipline, or otherwise penalize an applicant or employee, based solely on a marijuana positive drug test unless:
    • the applicant/employee does not have a valid medical marijuana license;
    • the licensee possesses, consumes, or is under the influence in the workplace or during work hours; or
    • the licensee is in a safety-sensitive position (Oklahoma Statutes 63-427.8 K defines safety-sensitive).

Use/Possession

  • Smoking or vaping in public is prohibited, including outdoor smoking areas and any non-smoking area.
  • Consumption in a vehicle or being under the influence of marijuana by either passenger or driver is prohibited.

Other Impacting Laws

(e.g., drug testing, workers’ compensation, unemployment)
  • Although very employer-friendly, Oklahoma does have a drug testing law with precise details. An employer is subject to these requirements for any testing he or she is doing beyond any they are required to do under federal law or regulation to which they are subject.
    • Under Oklahoma Stat. 40-15-563, an employee has up to one year to claim the employer willfully violated the drug testing laws of Oklahoma which could result in penalties and fees.
  • Apply the Checklist of Impacting Issues to Research provided by NDS for additional state laws and issues that can relate to and/or impact your operations regarding employee use of marijuana.

Sources

(e.g., Bill Number, Authority)
Disclaimer

This resource is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.

Caution

Where there are quotation marks, the language is directly from published law. This information is only a summary of some issues and it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g. workers compensation, unemployment law).