New Law Provides Needed Clarity for Employers Regarding Medical Marijuana and Safety-Sensitive Positions

Posted by Charles Middleton on 03/16/2019

Employers with workers in safety-sensitive positions may rest easier with the passage of the Unity Bill relating to medical marijuana, which was signed into law by Oklahoma Governor Stitt on March 14, 2019. The new law covers a wide array of regulatory issues relating to the medical marijuana industry in Oklahoma. Of particular interest to many employers is a section of the new law relating to positions which perform safety-sensitive job duties. Under the new law, an Oklahoma employer can take adverse action against an employee who performs safety-sensitive job duties if that employee tests positive for marijuana, even if the employee is a licensed card holder. Adverse job actions can include refusing to hire, disciplining and even terminating such a worker for a positive marijuana test. This is a carve-out from the general non-discrimination provision in State Question 788 which prohibits adverse action against medical marijuana card holders.

Any job that includes tasks or duties that the employer reasonably believes could affect the safety and health of either the employee performing the task or others will be considered safety-sensitive under the new law. While this is a relatively broad definition, employers should still closely analyze the position before determining that it is necessarily safety-sensitive. Examples of job duties that are specifically delineated in the new law as making a position safety-sensitive include:

  • Handling hazardous waste
  • Operation of a motor vehicle
  • Operation of equipment and machinery in the manufacturing process
  • Operation and oversight of critical services and infrastructure such as electric, gas and water utilities
  • Use of volatile, flammable and combustible materials
  • Preparation and handling of medicine
  • Carrying of a firearm
  • Direct patient or child care    

Now that Oklahoma law has been clarified in regard to these positions, drug testing policies should clarify that employees in safety-sensitive positions may be held to a different standard if they test positive for marijuana than employees in non-safety-sensitive positions. Employers with employees performing safety-sensitive job duties should seek a new legal review of their drug testing policies.