On June 26, 2018, Oklahoma became the 30th state to legalize medical marijuana. According to a report conducted by the National Academies of Sciences, Engineering, and Medicine, using marijuana has extensive therapeutic and medicinal benefits, and smoking marijuana does not result in a higher risk of cancer. Regardless of the studies that demonstrate marijuana’s healing abilities, the U.S. Food & Drug Administration (FDA) has not yet approved marijuana for any medical purpose, and the use or possession of marijuana is still illegal under federal law.
Oklahoma’s Marijuana Law
The medical marijuana law passed in Oklahoma was supposed to go into effect in July, but that date has been pushed back while the state finalizes the law’s rules and regulations. Initially, the Oklahoma State Board of Health tried to amend guidelines proposed by Oklahoma’s Health Department to include requirements that every marijuana dispensary have a licensed pharmacist on staff and that women of child-bearing age obtain a pregnancy test before being prescribed marijuana. These two amendments were highly contested, and ultimately not included in the final guidelines approved by Oklahoma’s Governor, Mary Fallin.
The Governor’s approval of the guidelines, however, is not the final step. For the new law to be fully implemented, the Oklahoma legislature must agree on the final, permanent regulations. Those approved by the Governor are simply interim regulations so the process can move forward while the legislature works to permanently implement the new law.
Oklahoma Employers and Drug-Free Policies
What is often overlooked when marijuana laws – whether medicinal or recreational – are passed is their effect on employers. Many employers these days have drug-free policies in effect. So, what does it mean when state law conflicts with federal law?
In Oklahoma specifically, the new medical marijuana law specifically bars employers from discriminating against someone simply because they have a prescription for marijuana use. A pre-employment drug test that comes back positive for THC (the active ingredient in marijuana) is no longer a justification to deny employment to a candidate. Also, while employers do have the right to take disciplinary action against an employee if he or she is high while at work, that may be hard to prove. A positive drug test for THC is not enough to prove someone is high at work, since it is impossible to prove when the THC was ingested.
Federal employers who operate within the State of Oklahoma will also need to revise their drug-free workplace policies to state explicitly that marijuana use, even with a legal prescription, is prohibited. This is especially crucial if they are part of the U.S. Department of Transportation or the Federal Aviation Administration. Regardless of the laws of the state, if you work for the federal government, marijuana use is illegal.
Oklahoma is a bit behind the curve, with 29 states already having legalized medicinal marijuana and nine states and the District of Columbia allowing recreational marijuana use, so they should have numerous resources to look to for examples on how to finalize and implement their own program. It would be advisable for employers, whether state or private, to do the same in making sure their drug-free policies are updated to reflect this new law and to ensure their employees are properly trained and informed.