On March 14, 2019, Governor Kevin Stitt signed into law House Bill 2612, titled the Oklahoma Medical Marijuana and Patient Protection Act. This new law, which goes into effect 90 days after the close of this year’s legislative session, contains numerous statutory provisions regulating the medical marijuana industry in Oklahoma. Under the prior law (State Question 788), employers were prohibited from refusing to hire and from taking an adverse employment action against employees or applicants with medical marijuana licenses on the basis of that employee’s status as a medical marijuana license holder or because the medical marijuana license holder tested positive for marijuana.

While the new law continues to prohibit employers from refusing to hire, discipline, discharge, or otherwise penalize an applicant or employee on the basis of a positive test for marijuana, the new law also explicitly states some exceptions. An employer can now specifically refuse to hire, discipline, discharge, or otherwise penalize an employee on the basis of a positive test for marijuana if: (1) the applicant or employee is not in possession of a valid medical marijuana license, (2) the licensee possesses, 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, or (3) the position is one involving safety-sensitive job duties.

Thus, an employer can now exclude individuals in “safety sensitive” positions who test position for marijuana, even if that individual has a medical marijuana license. For purposes of the new law, “safety sensitive” means 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. The examples provided in the new law demonstrate that this exception can apply to a broad range of jobs, particularly those in the medical or manufacturing industries and those requiring use of motor vehicles. The examples given of safety sensitive jobs are:

• 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 of which could result in injury or property damage,
• Performing firefighting duties,
• 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 components,
• Dispensing pharmaceuticals,
• Carrying a firearm, or
• Direct patient care or direct child care

The statute makes clear that there could be other safety sensitive positions not specifically listed in the statute, as long as an employer has a reasonable belief that the safety and health of the employee performing the task or of others may be implicated. Since employees who suffer a willful violation of this section of the law will now be able to file an action in court, employers should place particular attention on making sure there is a reasonable basis for classifying any job as safety sensitive.

In addition, employers will also want to revisit handbook and other drug and alcohol testing policies to implement updates matching the language and scope of the new law. For assistance or help classifying positions, updating policies, or for any other issues related to medical marijuana, please feel free to contact any of the labor and employment attorneys at Titus Hillis Reynolds Love.