Medical Marijuana and the Unity Bill
updated June 26, 2019
The regulatory framework within which medical marijuana is allowed has continued to take shape this legislative session after the voters of the state passed State Question 788 (SQ788) last summer. In August 2018, OMAG provided information on its website based on the regulatory efforts of the State Department of Health and others. These attempts, through regulation, to add details to SQ788 were met with much opposition resulting in some of the earlier efforts being withdrawn. Then a working group of state legislators and others began meeting last fall to discuss the parameters of legislation that could be sponsored and supported to fill in some of the unknown gaps in the regulatory framework for medical marijuana in the State of Oklahoma.
This legislative session House Bill 2612, the Oklahoma Medical Marijuana and Patient Protection Act, more commonly called the “Unity Bill” was introduced in early February. The measure passed the House by the end of the month and was introduced in the Senate in early March. The measure passed the Senate on March 11th and was sent to Governor on March 12th. Governor Stitt signed the measure into law on March 14, 2019. The effective date of the new laws is August 29, 2019. In addition, the legislature passed Senate Bill 1030 on May 22, 2019 prior to the close of the session that provided additional clarity.
Provisions contained in HB2612 include the following:
State issued patient or caregiver license only. Municipal and county governing bodies may not enact medical marijuana guidelines which restrict or interfere with the rights of a licensed patient or caregiver to possess, purchase, cultivate or transport medical marijuana within the legal limits set forth in this act or Section 420 et seq. of Title 63 of the Oklahoma Statutes or require patients or caregivers to obtain permits or licenses in addition to the state-required licenses provided herein.
Rights to firearms protected. A medical marijuana patient or caregiver licensee shall not be denied the right to own, purchase or possess a firearm, ammunition, or firearm accessories based solely on his or her status as a medical marijuana patient or caregiver licensee. No state or local agency, municipal or county governing authority shall restrict, revoke, suspend or otherwise infringe upon the right of a person to own, purchase or possess a firearm, ammunition, or firearm accessories or any related firearms license or certification based solely on their status as a medical marijuana patient or caregiver licensee.
Patient or caregiver license holder not subject to prosecution. A medical marijuana patient or caregiver in actual possession of a medical marijuana license shall not be subject to arrest, prosecution or penalty in any manner or denied any right, privilege or public assistance, under state law or municipal or county ordinance or resolution including without limitation a civil penalty or disciplinary action by a business, occupational or professional licensing board or bureau, for the medical use of marijuana in accordance with this act.
Reimbursement as medical expense not required. A government medical assistance program shall not be required to reimburse a person for costs associated with the medical use of marijuana unless federal law requires reimbursement.
Statute does not require an employer, a government medical assistance program, private health insurer, worker's compensation carrier or self-insured employer providing worker's compensation benefits to reimburse a person for costs associated with the use of medical marijuana; or
Medical marijuana licensee job protections. No employer may refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of such applicant's or employee's status as a medical marijuana licensee; and
No employer may refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of a positive test for marijuana components or metabolites, unless: a. the applicant or employee is not in possession of a valid medical marijuana license, b. the licensee possesses, consumes or is under the influence of medical marijuana or medical marijuana product while at the place of employment or during the fulfillment of employment obligations, or c. the position is one involving safety-sensitive job duties.
Employers are not required to permit or accommodate the use of medical marijuana on the property or premises of any place of employment or during hours of employment;
Statute does not prevent an employer from having written policies regarding drug testing and impairment in accordance with the Oklahoma Standards for Workplace Drug and Alcohol Testing Act, Section 551 et seq. of Title 40 of the Oklahoma Statutes.
An applicant or employee aggrieved by a willful violation of this section shall have, as his or her exclusive remedy, the same remedies as provided for in the Oklahoma Standards for Workplace Drug and Alcohol Testing Act set forth in Section 563 of Title 40 of the Oklahoma Statutes.
"Safety-sensitive" means any job that includes tasks or duties that the employer reasonably believes could affect the safety and health of the employee performing the task or others including, but not limited to, any of the following:
the handling, packaging, processing, storage, disposal or transport of hazardous materials,
the 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,
the operation, maintenance or oversight of critical services and infrastructure including, but not limited to, electric, gas, and water utilities, power generation or distribution,
the 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,
carrying a firearm, or
direct patient care or direct child care; and
A "positive test for marijuana components or metabolites" means 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.
Smoking in Public Places and Indoor Workplaces. All smokable, vaporized, vapable and e-cigarette medical marijuana product inhaled through vaporization or smoked by a medical marijuana licensee are subject to the same restrictions for tobacco under Section 1-1521 of Title 63 of the Oklahoma Statutes, commonly referred to as the "Smoking in Public Places and Indoor Workplaces Act".
Municipal regulatory authority recognized. All relevant local licenses and permits must be issued by the municipality, including but not limited to, an occupancy permit or certificate of compliance.
In the event that an applicant has not received the necessary permits, certificates or licenses from a municipality, but the applicant has fulfilled all other obligations required by this act, the Authority shall grant a conditional license. A conditional license shall remain valid for a period of one (1) year or until the applicant obtains the necessary local permits, certificates or licenses. An applicant shall not transfer any medical marijuana, concentrate or products to a medical marijuana business, patient or caregiver until approval is received from the Authority.
A licensed medical marijuana business premises shall be subject to and responsible for compliance with applicable provisions for medical marijuana business facilities as described in the most recent versions of the Oklahoma Uniform Building Code, the International Building Code and the International Fire Code, unless granted an exemption by the Authority or municipality.
No city or local municipality may unduly change or restrict zoning laws to prevent the opening of a retail marijuana establishment.
The location of any retail marijuana establishment is specifically prohibited within one thousand (1,000) feet from any public or private school entrance.
Provisions contained in Senate Bill 1030 include the following:
No imprisonment – cite and release. Clarification that persons eligible to be in possession of up to 1.5 ounces of marijuana but are not in possession of a state-issued medical marijuana license shall be punishable by a fine of not more than $400, but not subject to imprisonment for the offense. Officers are authorized to cite offenders and then release them upon there own recognizance to appear later in court in certain circumstances.
Caregiver must hold patient license to use. Clarification that a marijuana caregiver has the same rights of a medical marijuana patient license holder to possess marijuana, except for use, unless the caregiver also has a medical marijuana patient license.
No Board Certification requirement. Removes the requirement that a physician signing an application must be Board Certified.
Potential Federal impacts may be considered. Clarification regarding the standards by which a school, or landlord, or employer are allowed to consider the status of one holding a marijuana license in relation to admission, leasing, or workplace rules based on potential impacts to the school, landlord, or employer under federal law or regulations.
Zoning may not ban retail dispensaries. Clarification the restriction on a city or local municipality to not unduly change or restrict zoning laws means to prevent the opening within its boundaries as a matter of law of a retail marijuana retail establishment licensed by the State Department of Health as a medical marijuana dispensary.
Municipal Planning and Zoning. Clarification that municipalities may follow their standard planning and zoning procedures to determine if certain zones or districts would be appropriate for locating marijuana-licensed premises, medical marijuana businesses or other premises where marijuana or its by-products are cultivated, grown, processed, stored or manufactured.
No conditional state licenses pending municipal processes. Eliminating a section providing for a conditional state license if municipal permits, certificates, or licenses are pending.