'Safety-sensitive' medical marijuana changes may be delayed
Gov. Kevin Stitt recently signed the “Unity Bill” into law, but a new lawsuit could delay its effective date. What is the Unity Bill?
The Unity Bill became law after House Bill 2612 was signed by Gov. Stitt on March 14. This new law provides additional regulatory controls over the medical marijuana industry, and most notably for Oklahoma employers, it contains an exception for positions with safety-sensitive job duties. Under that exception, an Oklahoma employer can discipline an employee in a safety-sensitive position, up to and including termination of employment, for a positive marijuana test even if the employee is a licensed medical marijuana cardholder. This is welcome news to many Oklahoma employers, many of which are looking to immediately revise existing drug testing policies to incorporate this new law. However, the effective date of this law is still months away and the Unity Bill now faces a legal challenge that could delay the date even longer.
What is the effective date, and what is the new development?
The version of House Bill 2612 signed by Gov. Stitt did not contain an emergency clause or an alternative effective date. Therefore, under the Oklahoma Constitution Article V, Section 58, it will go into effect 90 days after the adjournment of the session at which it was passed. According to the Oklahoma legislative calendar, the 2019 session is scheduled to adjourn on May 31, which would make the law effective on Aug. 30. However, there has been a new development that could further delay the effective date. On March 19, a constitutional challenge to the new law was filed in the form of a Petition for Declaratory Judgment in the District Court for Oklahoma County. The lawsuit alleges that the new law, including its “safety-sensitive” exception, violates Oklahoma law by denying due process, violating equal protection under the law, creating an impermissible special law and that it is unconstitutionally vague and therefore void. The lawsuit seeks temporary and permanent injunctive relief, which if granted, could either temporarily delay the rollout of the new law or keep it from taking effect altogether.
How should Oklahoma employers proceed?
For now, barring any extensions of the current legislative session, circle Aug. 30 on your calendar as the date that the new law goes into effect and revised policies can be sent to employees (don’t forget the 10-day notice period before the new policy can take effect). Also keep an eye on the status of the lawsuit (Leslie Ann Collum, Painted Nurse Cannabis Consultant LLC et al v. The State of Oklahoma ex rel., The Oklahoma State Department of Health et al.) as it has the potential to change the timing.
Paula Burkes, Business writer
Published The Oklahoman, April 4, 2019