Oklahoma has again amended the employment provisions of the Oklahoma Medical Marijuana Act (“OMMA”), specifically Title 63, Section 427.8. The new law, set to take effect on November 1, 2026, involves significant changes to the employment and drug testing provisions of the OMMA that will require many employers to revise their drug testing policies.
Stricter rules for “safety-sensitive” positions
The new legislation states that any applicant or employee in a “safety-sensitive” position must be subject to a “zero-tolerance drug and alcohol standard.” Although the law does not define “zero-tolerance” or elaborate on what this means in practice, the language suggests employees in safety-sensitive positions should be subject to adverse action if they have a positive test result, regardless of status as a license holder.
The law significantly changes the definition of a “safety-sensitive” position, which will warrant changes to many drug testing policies. The prior version allowed an employer to designate a position safety-sensitive if the employer “reasonably believed” the job could affect the health and safety of the employee or others, and many drug testing policies rely on that language. The new law removes the reasonable belief language and instead provides a non-exhaustive list of job duties that qualify as safety-sensitive:
- handling, packaging, processing, storage, disposal or transport of hazardous materials;
- operation of a motor vehicle, other vehicle, equipment, machinery or power tools;
- repairing, maintaining or monitoring the performance or operation of any equipment, machinery or manufacturing process, the malfunction or disruption of which could result in injury or property damage;
- performing firefighting duties;
- operation, maintenance or oversight of critical services and infrastructure including, but not limited to, electric, gas, and water utilities, power generation or distribution;
- extraction, compression, processing, manufacturing, handling, packaging, storage, disposal, treatment or transport of potentially volatile, flammable, combustible materials, elements, chemicals or any other highly regulated component;
- dispensing pharmaceuticals;
- carrying a firearm; and
- direct patient care or direct child care.
Although the discretionary component was removed, the use of the phrase “including, but not limited to” suggests other comparable job duties may qualify.
Employers given more discretion to take adverse action
The new law allows an employer to take adverse action against an applicant or employee due to a drug test positive for marijuana if: (1) the individual did not have a valid medical marijuana license; (2) the individual possessed, consumed, or was under the influence of marijuana at work; or (3) the adverse action is taken pursuant to a written drug and alcohol testing policy adopted and enforced in accordance with the Standards for Workplace Drug and Alcohol Testing Act, 40 Okla. Stat. § 551 et seq. The third provision gives employers more discretion to take adverse action for a positive marijuana test, regardless of whether the position is safety sensitive or the employee has a valid license.
Next steps for employers
Employers of all sizes will need to review and likely revise their drug testing policies regarding marijuana to comply with these significant changes to the OMMA prior to the law taking effect on November 1.
