Understanding the Issues: Medical Marijuana and the 2019 Legislative Session
The passage of State Question 788 in June 2018 made Oklahoma the 31st of 33 states to legalize medical marijuana. The quick implementation timeline of SQ 788, the controversy surrounding the Department of Health’s rules for the medical marijuana program, and the continued federal prohibition on marijuana raise a number of questions that legislators will address during the 2019 Legislative Session. This issue brief highlights some of the issues and questions facing the state as Oklahoma begins its first post-SQ 788 legislative session.
Under current law, if a worker tests positive for marijuana from a post-accident drug test, they are not entitled to workers’ compensation benefits. Current drug testing technology, however, cannot determine whether an individual is impaired at the time of taking the test. Drug tests only determine whether the person has consumed marijuana within a recent timeframe. Thus, an employee who legally consumed marijuana but was not impaired at the time of the accident would still fail a traditional drug test.
Workers’ compensation benefits can be reduced by up to 50% in Colorado if an injured employee fails a drug test, even if there is not proof that the employee was intoxicated at the time of the injury. What weight should non-descriptive tests have on workers’ compensation proceedings in Oklahoma if an employee is legally able to consume marijuana during their off-work hours? Does the burden of proof fall to the employee to prove the employee was not impaired, or does it fall to the employer or workers’ compensation provider to prove the employee was impaired?
State Question 788 prohibits employers from punishing employees solely based on their status as a medical marijuana license holder, or for merely failing a drug test. Arizona’s medical marijuana law contained a nondiscrimination provision very similar to the one found in SQ 788; however in 2011, the Arizona Legislature passed HB 2541 to amend the nondiscrimination provision to protect employers under limited circumstances. The amendment defines certain criteria employers can use to determine whether an employee is impaired by marijuana and protects employers from retribution for “actions based on the employer’s good faith belief that an employee had an impairment while working on the employer’s premises or during hours of employment.”
What standards should employers be able to use to determine when an employee is impaired on the job in Oklahoma? What protections will be put in place to ensure that employers who choose to enforce drug-free workplace policies for the protection of their employees are not sued for violating the nondiscrimination policies in SQ 788?
The language in State Question 788 language states that a physician may sign a patient’s application for a medical marijuana license, but – due to the federal prohibition of marijuana – does not grant permission to issue a prescription for cannabis. This distinction is important because it means that medical marijuana may still not qualify as a prescription drug.
For patients, insurance providers, and physicians, this raises some important questions. Five states currently require workers’ compensation insurance to pay for medical marijuana if it is recommended by a physician: Connecticut, Maine, Minnesota, New Jersey and New Mexico. In other states, it is not generally covered. Will workers’ compensation or health insurance providers be required to cover medical marijuana if it is recommended by a physician?
The passage of SQ 788 has opened up opportunities for business and investment in an entirely new sector, and already Oklahoma has seen hundreds of new businesses approved for dispensary licenses to meet new demand for medical marijuana. Because of federal regulations, most federally-insured banks refuse to serve these businesses, forcing them to operate as cash-only enterprises. This status exposes these businesses to a significant amount of risk, and makes it more difficult for the state, including the Tax Commission, to oversee, audit, and regulate these firms. What regulatory framework will the state implement to ensure these businesses comply with all appropriate state laws, including tax laws?
Following the passage of Colorado’s Amendment 64, legalizing recreational marijuana, the Governor created a task force to recommend a regulatory scheme for the rollout of the recreational marijuana industry in that state. Among the recommendations in the Task Force’s final report was a proposal to create a special division for the enforcement of marijuana laws in their state’s Department of Revenue.
Businesses dealing with medical marijuana already face increased risk due to their unrecognized federal status and their requirement to deal only in cash. They may be at additional risk, however, if they are not able to ensure their business and possessions.
California’s Insurance Commissioner has developed regulations for surety insurance policies for medical marijuana businesses since the state’s law requires that dispensaries have surety bonds in order to be licensed. What regulations should exist in Oklahoma for insurance companies looking to insure the property and possessions of individuals and businesses that grow or sell marijuana?
Oklahoma and the Federal Government
During the 115th Congress (2017-2018), the STATES Act (S.3032) was introduced by Sen. Elizabeth Warren. The bill would recognize the legalization of marijuana in states, territories, and tribal reservations that have voted to legalize cannabis and has five Republican and five Democrat cosponsors in the Senate. An identical bill (HR 6043) introduced in the House has the support of 15 Republicans and 15 Democrats. Twelve state governors (seven Democrats, four Republicans, and one Independent) wrote a letter in support of the bill, and President Trump indicated that he would likely support the measure. No members of Congress from Oklahoma have signed on to either bill as a co-sponsor.
Will Oklahoma’s Congressional delegation, especially the two members newly elected to Congress since the passage of SQ 788, take a different stance toward federal regulation of marijuana? Will Oklahoma’s new governor and other state leaders join other states in lobbying for less federal regulation of the drug?