Oklahoma’s medical marijuana law, which went into effect on July 26, 2018, is available here.
The state’s Medical Marijuana and Patient Protection Act, which became effective Aug. 29, 2019, is available here.
Drug Testing Law Text of the Oklahoma Standards for Workplace Drug Testing Act is available here. Oklahoma law does not require employers to perform drug and alcohol testing tests on employees or applicants. However, employers that choose to perform these tests must meet certain requirements under the Oklahoma Standards for Workplace Drug and Alcohol Testing Act (ODATA). These employers may also be subject to restrictions under the state’s medical marijuana law. This Employment Law Summary provides a general overview of these restrictions and of the ODATA’s requirements for workplace drug and alcohol testing.
On June 26, 2018, Oklahoma voters approved a ballot measure (State Question 788) that legalized medical marijuana in the state effective July 26, 2018. Under this law, Oklahoma residents who are age 18 or older may obtain a state-issued license to use and possess marijuana for medical purposes in the state. Residents who are under age 18 may also obtain these licenses if they qualify for a special exception.
The medical marijuana law does not affect an employer’s rights to take actions against any employees if they use or possess marijuana either:
• In the workplace; or
• During their hours of employment.
However, the law does include certain employment protections for medical marijuana license holders. Specifically, the law provides that, unless compliance would result in the imminent loss of any monetary- or licensing-related benefit under federal law or regulations, employers are prohibited from taking any adverse employment action against a licensed medical marijuana user solely based on:
• His or her status as a medical marijuana license holder; or
• The fact that he or she tests positive for marijuana.
In March 2019, the state enacted the Oklahoma Medical Marijuana and Patient Protection Act to clarify these and other portions of the medical marijuana law. Effective Aug. 29, 2019, the new law defines a positive test for marijuana as “a result that is at or above the cutoff concentration level established by the United States Department of Transportation or Oklahoma law regarding being under the influence, whichever is lower.”
Also, effective Aug. 29, 2019, the new law allows employers to take adverse actions against an authorized medical marijuana user based solely on a positive test for marijuana, but only if the individual:
• Consumes or is under the influence of medical marijuana in the workplace or during the fulfillment of employment obligations; or
• Seeks or holds a safety-sensitive position.
Under the law, safety-sensitive positions are defined as those that include tasks or duties that an employer reasonably believes could affect the safety and health of the employee or others. Examples of tasks or duties that may be considered safety-sensitive include:
• Handling hazardous materials;
• Operating a motor vehicle, another vehicle, equipment, machinery, or power tools;
• Repairing, maintaining, or monitoring equipment, machinery, or manufacturing processes where their malfunction or disruption could result in injury or property damage;
• Performing firefighting duties;
• Operating, maintaining, or overseeing critical services and infrastructure;
• Handling any potentially volatile, flammable, combustible materials or highly regulated components;
• Dispensing pharmaceuticals;
• Carrying a firearm; and
• Providing care for a patient or child.
Finally, the new law clarifies that if an employer violates the protections for authorized medical marijuana users, an employee or applicant may seek remedies for a willful violation of the state’s drug testing law (as described below).
Standards for Workplace Drug and Alcohol Testing Act
The Oklahoma Standards for Workplace Drug and Alcohol Testing Act (ODATA) restricts how and when private employers may conduct workplace drug and alcohol testing. In general, employers are prohibited from conducting any testing that falls outside the scope of the law’s permissions.
Written Policy Requirements
Before an employer may require an applicant or employee to undergo drug or alcohol testing, it must first adopt a written policy. At a minimum, an employer’s written policy must include a statement of the employer's policy on drug or alcohol use and information about:
• Which applicants and employees are subject to testing;
• The circumstances under which testing may be requested or required;
• The substances which may be tested for;
• Testing methods and collection procedures to be used;
• Consequences of refusals to submit to testing;
• Potential adverse employment actions that result from a positive test;
• Tested individuals’ rights to explain their test results in confidence and to obtain copies of all information and records related to their testing;
• Confidentiality requirements; and
• The available appeal procedures.
Employers that create new testing policies or amend their existing policies must provide their employees with notice at least 10 days before implementing or amending the policies. Employers must also provide a copy of their drug or alcohol testing policy to each applicant that accepts an offer of employment.
Under the ODATA, an employer may request or require:
• Applicant and transfer or reassignment testing;
• for-cause testing;
• Post-accident testing;
• Random testing;
• Scheduled, fitness-for-duty, return from leave and another periodic testing; and
• Post-rehabilitation testing.
Applicant and Transfer or Reassignment Testing
Employers may require drug or alcohol testing as a condition of employment. If an individual test positive or refuses to undergo testing, the employer may refuse to hire or reassign him or her to a new position based on the result or refusal.
An employer may require an employee to undergo drug or alcohol testing any time it reasonably believes that the employee may be under the influence of drugs or alcohol. In general, an employer is considered to have a reasonable belief if:
• Drugs or alcohol are found on or about the employee’s person or in the employee’s vicinity;
• The employee’s conduct suggests impairment or influence of drugs or alcohol;
• The employer receives a report indicating that the employee used drugs or alcohol use at work or while on duty;
• The employee has tampered with a drug or alcohol testing at any time; or
• The employee exhibits negative performance patterns or has a record of excessive or unexplained absenteeism or tardiness.
An employer may require an employee to undergo testing if the employee or another person has sustained an injury while at work or if the employer's property has been damaged due to a workplace accident involving the employee. If an employee refuses to submit to a test or tests positive for drugs or alcohol after an accident, he or she may be disqualified from receiving workers' compensation benefits.
Employers may require random testing and may limit their random testing programs to particular employment classifications or groups.
Fitness-for-duty, Return from Leave and Other Periodic Testing
Employers may require an employee to undergo drug or alcohol testing as a routine part of a scheduled employee fitness-for-duty medical examination if the test is:
• Performed in connection with the employee's return to duty from a leave of absence; or
• Scheduled routinely as part of the employer's written policy.
Following an employee’s positive test or participation in a drug or alcohol dependency treatment program, employers may require the employee to undergo drug or alcohol testing for up to two years after returning to work.
SAMPLE COLLECTION REQUIREMENTS
Under the ODATA, all sample collection and testing must be conducted in accordance with certain conditions. For example, all samples must be collected and tested by individuals deemed qualified by the State Board of Health under reasonable and sanitary conditions. In addition, employers must ensure the privacy of the tested individuals and maintain a written record of a sample’s chain of custody from the time the sample is collected until it is no longer required.
Employers must pay for all drug or alcohol tests they require. If an employee or applicant’s initial test result is positive, he or she may submit a request for a confirmation test within 24 hours after receiving notice of the initial positive result. If that confirmation test is positive, the employee or applicant must pay for it. However, if the confirmation test reverses the findings of the challenged positive test, the employer must reimburse the individual for the costs of the confirmation test.
Applicants and employees who believe that an employer has willfully violated the ODATA may file a civil lawsuit against the employer. Employers that are found guilty of violating the law may be ordered to pay damages incurred by the affected individual along with reasonable court costs and attorney fees.
OTHER DRUG TESTING LAWS
In addition to state law, transportation employees in Oklahoma, such as drivers of commercial motor vehicles, must comply with federal law. The U.S. Department of Transportation (DOT) Federal Motor Carrier Safety Administration’s (FMCSA) drug and alcohol testing regulations govern workplace drug testing for these employees. For more information on the FMCSA’s alcohol and drug testing regulations, visit the FMCSA website.