Until this legislative session, Oklahoma employers had a big unanswered question regarding employees who hold safety sensitive positions. How has this been a problem?

Since the passage of State Question 788, Oklahoma employers have often had more questions than answers about the use of prescribed medical marijuana by employees. One of the most prominent questions has been how to handle the use of medical marijuana by employees who hold safety sensitive positions and also hold a license for medical marijuana. As originally written, SQ 788, codified at Title 63 Section 420 of the Oklahoma Statutes, provided only a very broad anti-discrimination provision without any carve-out for employees in safety sensitive positions. This left employers in a quandary when faced with known marijuana use by employees in safety sensitive positions who hold a medical marijuana license — allow these employees to continue working in their role despite obvious safety concerns or risk violating Oklahoma law by terminating the employee or removing them from their safety sensitive role.

What does the new law say about employees in safety sensitive positions?

The Oklahoma Medical Marijuana and Patient Protection Act (former House Bill 2612) was signed into law by Gov. Kevin Stitt on March 14. The new law, which provides an extensive medical marijuana regulatory framework, also contains a section that specifically allows employers to refuse to hire, discipline or even terminate employees for a positive marijuana test, even if the employee is a medical marijuana license holder, if the employee performs safety sensitive job duties. The new law defines “safety sensitive” as any job with duties that the employer reasonably believes could affect the safety and health of the employee performing the task or others. The bill provides examples of such jobs, including: positions that handle hazardous waste; the operation of a motor vehicle; the operation of machinery in manufacturing; the operation and oversight of critical services and infrastructure, such as electric, gas and water utilities; jobs involving volatile, flammable and combustible materials; the preparation and handling of medicine; jobs requiring the carrying of a firearm; and positions involving direct patient or child care.