Medical marijuana patient employment rights in Oklahoma
Oklahoma medical cannabis patients have protections in the workplace, but they come with some legal exceptions.
When State Question 788 passed legalizing medical marijuana in Oklahoma, it included provisions that would protect the state’s patients from general workplace discrimination. In 2019, The Unity Bill was signed into law creating the Oklahoma Medical Marijuana and Patient Protection Act. The Act added exceptions to patient employee protections and clarity to the law that employers, employees and applicants alike should understand to know the reach of their rights.
State Question 788 established no employer can refuse to hire, fire or otherwise penalize an applicant or employee on the basis of their status as a medical cardholder or for a positive drug test for cannabis or its components.
These are the exceptions as of today:
the employer would lose federal funding, risk federal licensing or is subject to federally mandated testing
the applicant or employee doesn’t have a valid OMMA patient license
the employee is in possession or consuming and under the influence of cannabis at work
the position involves “safety-sensitive” job duties
The Patient Protection Act 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, including but not limited to:
a. the handling, packaging, processing, storage, disposal or transport of hazardous materials,
b. the operation of a motor vehicle, other vehicle, equipment, machinery or power tools, ENR. H. B. NO. 2612 Page 25
c. 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,
d. performing firefighting duties,
e. the operation, maintenance or oversight of critical services and infrastructure including, but not limited to, electric, gas, and water utilities, power generation or distribution,
f. 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,
g. dispensing pharmaceuticals,
h. carrying a firearm, or
i. direct patient care or direct child care
“What the employer reasonably believes” is safety-sensitive leaves room for them to analyze job duties and interpret for themselves which positions should be designated as such.
Employers have the right to refuse to hire an applicant for a safety-sensitive position if the applicant tests positive for cannabis in their pre-employment drug screen. That doesn’t mean, however, that an employer won’t hire a medical marijuana patient for a safety-sensitive position. When 10% of the state’s workforce is licensed to legally consume cannabis, many employers may choose to hire patients for safety-sensitive positions, and only take disciplinary action if there is a work related accident or injury.
The Oklahoma Standards for Workplace Drug and Alcohol testing Act set forth in section 563 of title 40 of the Oklahoma statutes requires employers to have a written policy for drug testing. If an employer changes their policy, they have to provide ten days notice to their employees. If you are a medical marijuana patient in a position that has been designated safety-sensitive, you need to know that and there is a legal protocol employers have to follow in communicating the changes with you.
Employers can only request drug testing in the following situations:
“Applicant and transfer/reassignment testing: A public or private employer may request or require an applicant to undergo drug or alcohol testing and may use a refusal to undergo testing or a positive test result as a basis for refusal to hire. A public or private employer may also request or require an employee who transfers to a different position or job, or who is reassigned to a different position or job, to undergo drug or alcohol testing;
For-cause testing: A public or private employer may request or require an employee to undergo drug or alcohol testing at any time it reasonably believes that the employee may be under the influence of drugs or alcohol, including, but not limited to, the following circumstances:
a. drugs or alcohol on or about the employee's person or in the employee's vicinity,
b. conduct on the employee's part that suggests impairment or influence of drugs or alcohol,
c. a report of drug or alcohol use while at work or on duty,
d. information that an employee has tampered with drug or alcohol testing at any time,
e. negative performance patterns, or
f. excessive or unexplained absenteeism or tardiness;
Post-accident testing: A public or private employer may require an employee to undergo drug or alcohol testing if the employee or another person has sustained an injury while at work or property has been damaged while at work, including damage to equipment. For purposes of workers' compensation, no employee who tests positive for the presence of substances defined and consumed pursuant to Section 465.20 of Title 63 of the Oklahoma Statutes, alcohol, illegal drugs, or illegally used chemicals, or refuses to take a drug or alcohol test required by the employer, shall be eligible for such compensation;
Random testing: A public or private employer may request or require an employee or all members of an employment classification or group to undergo drug or alcohol testing at random and may limit its random testing programs to particular employment classifications or groups, except that a public employer may require random testing only of employees who:
a. are police or peace officers,
b. have drug interdiction responsibilities,
c. are authorized to carry firearms,
d. are engaged in activities which directly affect the safety of others,
e. are working for a public hospital including any hospital owned or operated by a municipality, county, or public trust, or
f. work in direct contact with inmates in the custody of the Department of Corrections or work in direct contact with juvenile delinquents or children in need of supervision in the custody of the Department of Human Services;
Scheduled, fitness-for-duty, return from leave and other periodic testing: A public or private employer may request or require an employee to undergo drug or alcohol testing if the test is conducted as a routine part of a routinely scheduled employee fitness-for-duty medical examination, or is requested or required by the employer in connection with an employee's return to duty from leave of absence, or which is scheduled routinely as part of the employer's written policy, except that a public employer may require scheduled, periodic testing only of employees who:
a. are police or peace officers, b. have drug interdiction responsibilities, c. are authorized to carry firearms, d. are engaged in activities which directly affect the safety of others,
e. are working for a public hospital including any hospital owned or operated by a municipality, county, or public trust, or
f. work in direct contact with inmates in the custody of the Department of Corrections or work in direct contact with juvenile delinquents or children in need of supervision in the custody of the Department of Human Services; and
Post-rehabilitation testing: A public or private employer may request or require an employee to undergo drug or alcohol testing for a period of up to two (2) years commencing with the employee's return to work, following a positive test or following participation in a drug or alcohol dependency treatment program.
Beyond the listed exceptions and reasons for testing, no employer can discriminate against you for being a medical card holder or testing positive for cannabis on a drug test. Even so, prevailing in a case against an employer comes with its own unique challenges. Oklahoma is an at-will state, and granted there are policy exceptions at play here, aggrieved employees are still disadvantaged in any action.
If an employer willfully violates the ODTA and/or Patient Protection Act, you have the same remedies as provided for in the Oklahoma Standards for Workplace Drug and Alcohol Testing Act. You may institute a civil action in court within one year of the alleged willful violation of your patient rights. Such cases would require proof by the preponderance of the evidence—an evidentiary standard wherein you would have to convince the fact finder there is greater than 50% chance that the employer had a specific intent to violate the Act. Oklahoma’s at-will status can make it difficult to connect the dots in a way that stands up to such standards in court.
If you can prove your claim and prevail, you could be awarded lost wages and an additional equal amount as liquidated damages. Bringing the case and falling short however could add insult to injury as reasonable costs and attorney fees may also be awarded to the prevailing party, whether plaintiff or defendant.
The attorneys at Gies Law Firm can help you navigate this difficult intersection of patient and employment rights. We’re here to listen to your story and discover the best path forward to honor both your employment and medical patient status in Oklahoma. If you feel you are experiencing workplace discrimination because of your status as an Oklahoma medical marijuana patient, book a consultation today.
