Oklahoma became the 30th state to pass a medical marijuana law after voters approved it on June 26, 2018. The law gives broad discretion to physicians in prescribing medical marijuana, which should make it fairly easy to obtain. Additionally, the law restricts employers from taking action against applicants or employees solely based on their status as a medical marijuana license holder or due to a positive drug test result. The law takes effect on July 26, 2018.

The law will be implemented quickly. It gives the Oklahoma State Department of Health until July 26, 2018 to make available on its website applications for medical marijuana licenses/caregiver licenses, dispensary licenses, commercial grower licenses, and processing licenses. It also requires the Oklahoma State Department of Health to establish by August 25, 2018, a regulatory office to receive these applications. Applications are to be approved/denied within fourteen days of receipt. A medical marijuana license will be valid for two years. Temporary licenses, which are valid for 30 days, may also be requested.

No “Qualifying Medical Conditions” Specified

A medical marijuana license application must be signed by an Oklahoma Board certified physician. However, unlike most other state medical marijuana laws, there are no “qualifying medical conditions” required to make a patient eligible for medical marijuana use. Rather, the license must be recommended “according to the accepted standards a reasonable and prudent physician would follow when recommending or approving any medication.”

Oklahoma’s governor, Mary Fallin, stated after the election results were clear that the new law “is written so loosely that it opens the door for basically recreational marijuana.” Prior to the election, Gov. Fallin stated that she planned on calling a special session of the legislature if voters passed the measure.

Medical marijuana license holders will be permitted to legally possess up to three ounces of marijuana on their person and up to eight ounces in their residence (as well as specified amounts of edible marijuana, concentrated marijuana, and plants). The law permits the issuance of a license to applicants 18 years or older, but also has provisions to allow applicants under the age of 18 to obtain a license.

Implications for Employers

The law provides protection to medical marijuana license holders against discrimination in the workplace. Absent the “imminent” loss of a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in the hiring, termination or other term or condition of employment based on:

  1. The individual’s status as a medical marijuana license holder; or,
  2. Employers may take action against a holder of a medical marijuana license holder if the holders uses or possesses marijuana while in the holder’s place of employment or during the hours of employment. Employers may not take action against the holder of a medical marijuana license solely based upon the status of an employee as a medical marijuana license holder or the results of a drug test showing positive for marijuana or its components [emphasis added].

Employers in Oklahoma should consult with counsel regarding the implications of this new medical marijuana law and should update their drug testing policies.

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Photo of Catherine A. Cano Catherine A. Cano

Catherine A. Cano is a principal in the Omaha, Nebraska, office of Jackson Lewis P.C. Catherine represents management in all areas of labor and employment law.

Catherine helps clients navigate obligations under the Americans with Disabilities Act, Family and Medical Leave Act, and…

Catherine A. Cano is a principal in the Omaha, Nebraska, office of Jackson Lewis P.C. Catherine represents management in all areas of labor and employment law.

Catherine helps clients navigate obligations under the Americans with Disabilities Act, Family and Medical Leave Act, and state disability and leave laws. She also counsels clients on workplace drug and alcohol issues, including developing substance abuse policies. Catherine has defended more than 100 charges of discrimination filed with federal, state and local administrative agencies, and regularly appears before the U.S. Equal Employment Opportunity Commission, Iowa Civil Rights Commission and Nebraska Equal Opportunity Commission. Catherine represents in employers in federal and state court proceedings and has successfully defended multiple employment arbitrations.

Catherine’s practice also includes assisting clients with union organization campaigns, collective bargaining, grievance arbitrations, and unfair labor practice charges. Catherine also has experience defending employers against whistleblower claims filed with the Occupational Health and Safety Administration.

Photo of Kathryn J. Russo Kathryn J. Russo

Kathryn J. Russo is a principal in the Long Island, New York, office of Jackson Lewis P.C. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws, as well as…

Kathryn J. Russo is a principal in the Long Island, New York, office of Jackson Lewis P.C. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws, as well as substance abuse management and marijuana laws’ impact on employers.

Kathryn helps clients navigate workplace problems involving drugs and alcohol. She regularly works with corporate counsel and human resources executives to develop substance abuse policies to comply with federal drug and alcohol testing regulations (including all agencies of the U.S. Department of Transportation), as well as state and local drug and alcohol testing laws and marijuana laws in all 50 states. In addition, she defends employers in litigation where drug and alcohol test results are at issue, and frequently conducts “reasonable suspicion” training for employers in connection with their substance abuse policies. Kathryn also advises employers on leave and disability management issues arising when employees seek leave or other accommodations related to substance abuse rehabilitation.