Going in to this election, the possession and use of medical marijuana was illegal in Oklahoma. However, arguments against cannabis legalization have now gone up in smoke. The Oklahoma voters have spoken by enacting State Question (SQ) 788, which now makes it legal to grow, sell, and use marijuana for medicinal purposes. Under the law, adults with a medical marijuana license would be authorized to, among other things, possess up to three ounces of marijuana on their person, six flowering plants, seventy two ounces of edibles, and one ounce of concentrated marijuana derived from the plant. SQ 788 will go into effect 30 days from June 26, 2018.
Why is this enactment important? Amongst other things, SQ 788 forbids employers from discriminating against a person in hiring or termination or from imposing any term or condition of employment or otherwise penalizing a person based upon either:
- The person’s status as a medical marijuana license holder; or
- The results of a positive drug test showing marijuana or any of its components.
There is some solace for Oklahoma employers though. SQ 788 states that employers may take action against a medical marijuana holder if the holder uses or possesses marijuana “while in the holder’s place of employment or during the hours of employment.” What this means is that employers must ensure that their workforce understands that being impaired at work or under the influence of cannabis while at work is prohibited under all circumstances and could lead to disciplinary actions, including termination.
Furthermore, like California’s cannabis statute, SQ 788 provides a carve out that in effect allows employers to penalize persons holding medical marijuana cards if failing to do so would “cause an employer to imminently lose a monetary or licensing related benefit under federal law or regulations.”
While it appears that there is some solace for employers, SQ 788 also seems to create a cloud of smoke and uncertainty. Like other statutes with similar provisions, SQ 788 fails to define “monetary or licensing related benefit under federal law.” Thereby leaving employers in a haze when determining if their practices fall within the carve out.
Furthermore, SQ 788 does not have specific language that employers must offer the use of medical marijuana as a reasonable accommodation under Oklahoma’s Anti-Discrimination Act. Although the underlying debilitating medical condition may qualify an individual for protections under the anti-discrimination act, whether an employer must allow an employee to use medical marijuana as a reasonable accommodation is still up for debate.
If you have any questions regarding compliance with cannabis laws, please feel free to contact your favorite Seyfarth cannabis attorney.