Medical Marijuana is Legal in Oklahoma. Here’s What That Means to You as an Employer.
The people of Oklahoma recently voted to legalize medicinal use of marijuana under State Question 788.
While some groups are riding high on victory, the new law leaves many employers scratching their heads, asking questions such as:
- What will this mean for my drug-free workplace?
- How does insurance play into all of this?
- Am I going to have a company full of pot heads?
While the details of putting SQ 788 into action are still being solidified, Nextep is here to dig through the weeds and supply you with some preliminary answers.
When does this go into effect?
Detailed information will be available online by July 26, 2018. The Oklahoma State Department of Health (OSDH) will begin accepting applications on August 25. We hope to have more information about when licenses will be issued to applicants soon.
How does it factor into the hiring process?
It shouldn't. As with any other health condition, employers cannot discriminate against candidates or employees who have a medical marijuana license.
Do my employees have a responsibility/requirement to tell me ahead of time if they're taking medical marijuana?
No, they do not. The important factor is whether the employee can complete the essential functions of the job, with or without reasonable accommodations. Employers should not inquire about use of medicinal marijuana with employees who do not perform safety-sensitive work.
Also notable, employers cannot discriminate against an employee or prospective employee solely on the basis of being a medical marijuana license holder.
What about drug screening?
Nextep’s drug-screening partner handles this process so you don’t have to. Licenses will be verifiable through an OSDH database that is under construction now. A medical review officer (MRO) will verify licenses using this database and, in most cases, provide a negative result when a license is presented and/or verified.
DOT testing, however, will report findings, regardless of licensing. We hope to have further information and guidance on how to handle these results with your employees who drive for the company soon.
Will medical marijuana be covered by Aetna under our health insurance policy?
No, it is not covered at this time in any of the states in which medical marijuana has been legalized.
Will it be obtainable by telehealth services such as Teladoc or HealthiestYou?
No. Medical marijuana is considered a controlled substance, and as such, there are specific requirements regarding the patient/prescribing doctor relationship. While telehealth physicians efficiently and affordably treat a variety of health conditions, controlled substances are not part of those services.
Can I terminate my employee for marijuana use, even if it’s for legal medicinal purposes?
This is a tricky one.
We know that employers can demand a drug-free workplace and overrule a state's recreational marijuana laws, but what about medicinal? As with many regulations, the answer depends on the state.
Nolo.com provides a state by state reference, detailing how each state handles the law. In some states,
such as Colorado and California, employers do not have to accommodate medical marijuana use and may fire employees who test positive, even for legal use while off-duty.
Other states such as New York and Delaware caution employers against discriminating against medical marijuana users.
In any state, this is a hazy area that can easily lead to perceived or real discrimination. The growing crop of discrimination lawsuits show how difficult it is to navigate these laws. Failing to employ someone based on their medical marijuana use can be at least indirectly tied to the disability or health condition it is used to treat.
The legal reach for Oklahoma employers is being hashed out at this point, but we expect it to follow the example of Colorado, allowing employers to disallow it both recreationally and medicinally among employees. In any case, we recommend that you proceed with caution.
Keep in mind, the medical marijuana initiative does not give your employee license to use at work. Even if it’s allowed during off-duty hours under state law, employees don’t have the right to use or possess controlled substances on-the-job.
Of course, treatment for medical conditions varies among individuals and it can sometimes bleed into work hours. Determining the legality of what’s allowable can only be a state-by-state, case-by-case interactive process, determined between the employee, employer, and a qualified HR specialist.
Nextep’s HR experts know how to deal with these cases and can help you see through the smoke to a workable answer. Contact your HR partner with any additional questions you may have. We’ll continue to keep you updated with budding developments.