OSDE Guidelines Concerning SQ 788
The Oklahoma State Department of Education (OSDE) has received a number of questions about how State Question 788 (now codified at 63 O.S. § 420A, et seq.) relates to public schools. This document is non-binding, does not create or impose a legal requirement and is not intended to serve as legal advice or to replace or supplement the advice of a school district’s retained legal counsel. Rather, it is general in nature in response to questions that the OSDE has received as of September 10, 2018. School districts, and their personnel, are urged to seek the legal advice of their respective licensed school attorney with regard to any legal issue(s) encountered, including the matters set forth below.
State Superintendent of Public Instruction
1. Where can I read the Medical Marijuana Amendment?
Click here. See 63 O.S. § 420 et seq.
2. Where can I read the complete Oklahoma State Department of Health (the “Department of Health”) rules for the Oklahoma Medical Marijuana Authority?
Click here. See OAC 310:681.
3. What is a medical marijuana patient license (a “license”)?
A medical marijuana patient license allows an individual with an approved medical marijuana license application to legally buy, use and grow medical marijuana and medical marijuana products in Oklahoma. This license will be in the form of an identification card that can be used to prove an individual is a license holder. This card will contain the individual’s name, photo, date of birth, city and county of residence, the type of license (i.e, patient, processor, distributor, etc.), the date the license expires and the patient’s unique medical marijuana license number.
4. Are there restrictions on the location of a licensed medical marijuana dispensary?
Yes. A licensed medical marijuana dispensary may not be located within one thousand (1,000) feet of a public or private school. See SQ 788; see also OAC 310:681-5-3. The distance measured shall be from any entrance of the school to the nearest property line point of the dispensary.
5. When will applications for a license be available, and what is the timeline for processing them?
The Oklahoma State Department of Health began receiving and processing applications for a license on August 25, 2018, and responses will be provided to applicants within fourteen (14) days. While it is not known how long it can take an individual to acquire medical marijuana from a licensed dispensary in the State of Oklahoma, it is reasonably foreseeable that an individual could have a license in September 2018.
6. Who can obtain a medical marijuana license in Oklahoma?
Adults and minors may obtain a license; however, there are separate and distinct requirements for a minor to obtain one. See SQ 788; see also Oklahoma Administrative Code (OAC) 310:681-2-2, and Question 7 below.
7. What are the requirements for a minor to obtain a license?
A medical marijuana license allows an individual under the age of 18 to legally possess, use and grow medical marijuana and medical marijuana products in Oklahoma. These licenses will be in the form of an identification card that can be used to prove that a minor is a license holder. This card will contain the minor’s name, photo, date of birth, city and county of residence, the type of license, the date the license expires and the minor patient’s unique medical marijuana license number.
Among other information, an application for a minor’s license must include a signed recommendation by two (2) physicians and the signature and date of each parent or legal guardian. See SQ 788; see also Oklahoma Administrative Code (OAC) 310:681-2-2. Minor patient licenses are valid for a term of two (2) years, or until the minor turns age eighteen (18), whichever occurs first. For more information, see Minor Patient License Information.
Additionally, a caregiver license is available to designated individuals of certain homebound patients of all ages. Only patients who have a physician certification of their medical need for a caregiver may have a caregiver license; the status of the applicant as a minor alone does not qualify the applicant for a caregiver. The caregiver license allows an individual to assist a homebound patient with the purchase, application and administration of medical marijuana. Otherwise, a parent/guardian can assist a minor in the purchase, application and administration of medical marijuana. For more information, see Caregiver License Information.
8. Are there differences, relating to educational services and the provision thereof, between a minor patient license and an adult license (i.e., age 18 and above)?
Generally, for purposes of this document, no. Unless otherwise specifically indicated below, as relating to school districts and the provision of education services to students, a license and the associated privileges do not apply differently regardless of whether the license holder is a minor or an adult.
Student License Holder Services
9. Can a student self-administer medical marijuana on school property?
No. There is not a current Oklahoma law authorizing a student to use, possess and/or self-administer medical marijuana on school property. Oklahoma laws authorizing students to self-administer medication are limited to sunscreen, inhaled asthma medication and anaphylaxis medication. See 70 O.S. §§ 1-116.2 - 1-116.3.
10. Can school personnel, including but not limited to a school nurse, possess (on behalf of) and/or administer medical marijuana to a student?
No. Some states, such as Colorado and Illinois, have enacted statutes specifically authorizing school personnel, including school nurses, to store, possess and administer medical marijuana to a license holder. However, in Oklahoma, there is not a current law authorizing school personnel to administer medical marijuana. Oklahoma laws authorizing a school nurse, or other designated school employee in absence of a school nurse, to administer are limited to a filled prescription medicine (defined by 59 O.S. § 353.1), assisting in the application of sunscreen and administering a nonprescription medicine. See 70 O.S. § 1-116.2.
11. Can a parent/guardian administer medical marijuana treatments to a student license holder while on school property?
Marijuana (in any form) remains a controlled illegal substance under federal law, and federal program assurances that are signed in exchange for the receipt of federal funds remain unchanged and continue to require that districts assure that they are compliant with the Safe and Drug Free Schools Act and the Drug Free Workplace Act. As such, a district authorizing the possession, use or administration of medical marijuana is at risk of losing (and having to repay) federal funds. It should be noted, however, that we are not aware of a state with a marijuana authorization law (medical or otherwise), or a school district in such a state, that has lost or been required to repay federal funds as a result of its authorizing the possession, use or administration of marijuana on school property consistent with that state’s law.
As clear as the prohibition in federal law is, equally clear is that as a part of State Question 788, Oklahomans affirmatively put in state law that if an individual meets the requirements to have a license, that individual, including qualifying minors, shall have access to medical marijuana. Further, neither in State Question 788 nor in the Department of Health’s administrative rules are there limitations on a patient license holder having access to and/or receiving treatments on school property. Notably, State Question 788 and the Department of Health’s rules contain limitations on medical marijuana dispensaries being located within a certain distance (1,000 feet) of school property. This absence of a restriction in one part of the provisions, and affirmative placement of a restriction on dispensaries in another part (see Question 4 above), indicates Oklahomans’ intent that there are not to be restrictions on a patient license holder’s access to medical marijuana on school property.
In light of the foregoing, school districts may adopt a policy authorizing a student license holder to have access to his or her medical treatment on school property. If a district adopts such a policy, a student’s parent(s), legal guardian and/or caregiver should be permitted to bring an appropriate dosage of a student’s recommended medical marijuana product(s) to the school for the parent/legal guardian/caregiver (as applicable) to administer to the student.
Additionally, if a district adopts such a policy, the school should establish a place for a parent/legal guardian/caregiver to meet the student and administer the student’s dosage of medical marijuana product(s). In the same manner, schools must provide an appropriate space for the administration of insulin injections or space for a student to nurse or express milk for an infant. (This could be one designated space for all such student medical needs, or separate spaces, depending on the school’s available space and any relevant scheduling or privacy considerations.) Further, a school district policy should require that a record be kept of the name of the student to whom the medicine was administered, the date the medicine was administered, the dosage administered and the name of the person who administered the medicine.
12. If a district adopts a policy authorizing the administration of medical marijuana on school property, what should be included in the policy?
As a part of any policy, schools should require a parent/legal guardian/caregiver (as applicable) to provide the current and valid license for the student, any caregiver license(s) associated with the student, and a written authorization form, to include the following as applicable:
- Copy of the student’s current and valid medical marijuana license and any associated caregiver’s license;
- Purpose of the medication;
- Time to be administered;
- Dosage to be administered;
- Termination date for the administration of the medicine;
- Side effects to be observed, if any, the management of such effects and student allergies to food and/or medicine;
- Emergency instructions, as appropriate;
- Written acknowledgement assuming all responsibility for the provision, administration, maintenance and use of medical marijuana under state law, and release of liability for any injury, personal or otherwise, to a student which results from the acts or omissions of the parent/guardian/other licensed caretaker in administering or possessing the medical marijuana; and,
- Other appropriate information.
13. Are there barriers to enrollment or access to instructional services based on the qualification for a medical marijuana license or use of medical marijuana by a student patient license holder?
No. Students may not be denied enrollment or services by a public school district or charter school based on their holding of a license. In fact, State Question 788 expressly provides that a school shall not refuse to enroll and may not otherwise penalize a person solely for his or her status as a medical marijuana license holder, unless failing to do so would imminently cause the school to lose a monetary benefit under federal law or regulations.
14. Are there restrictions on smokable medical marijuana and medical marijuana products?
Yes. All smokable, vaporized, vapable and e-cigarette medical marijuana and medical marijuana products ingested, smoked or consumed by a patient license holder are subject to the same restrictions for tobacco under 63 O.S. § 1-1521 et. seq., (i.e., the Smoking in Public Places and Indoor Workplaces Act.)
15. What do these restrictions mean as they relate to school and/or school property?
The same prohibitions that exist relating to the use of tobacco in schools and/or on school property now also extend to all smokable, vaporized, vapable and e-cigarette medical marijuana on such property. As such, and because the Smoking in Public Places and Indoor Workplaces Act and the 24/7 Tobacco-free Schools Act (70 O.S. § 1210.213) prohibit the use of tobacco (now inclusive of all smokable, vaporized, vapable and e-cigarette medical marijuana), these forms of medical marijuana may not in any instance be used or consumed by a patient license holder (adult or minor) on school property.* School property includes, but is not limited to, buildings, physical grounds, motor vehicles and any school-sponsored or school-sanctioned event or activity. See 70 O.S. § 1210.212.
*Note: Notably, this prohibition does not extend to other forms of medical marijuana, such as edible.
16. Are there restrictions on a minor’s use of medical marijuana?
Yes. In addition to the aforementioned prohibitions on the smoking or vaping of medical marijuana in a public place (including a public school), under no circumstance shall a minor patient license holder be authorized to consume, smoke or inhale any smokable or vapable medical marijuana or smokable or vapable medical marijuana products, unless both recommending physicians agree it is medically necessary. See OAC 310:681-2-2(c).
17. Can a school district conduct a random drug testing program of students participating in interscholastic competitions and extra-curricular activities?
Yes. Consistent with the U.S. Supreme Court ruling in Board of Education of Independent School District No. 92 of Pottawatomie County et al v. Earls et al, 536 U.S. 822 (2002) and other court decisions, a school district may implement and conduct a random drug testing program of students participating in interscholastic competitions and extra-curricular activities requiring registration with the Oklahoma Secondary Schools Athletic Association (OSSAA).
A school district conducting a random drug testing program for such students should adopt a policy relating to the scope of such drug testing program, the activities within the scope of the random selection method, what substance(s) are included as being in violation of the policy and any consequences of violation(s). Importantly, any adopted policy should be provided to students and parents/guardians/caregivers.*
*Note: A school district conducting a random drug testing program may adopt a policy providing that a student with a medical marijuana license will not be subject to penalties or loss of privileges associated with testing positive for medical marijuana or its components, other than eligibility restrictions imposed by an outside organization that are beyond the control of the school district. See also Question 18.
18. What policies can school districts put in place relating to a student patient license holder participating in interscholastic athletics and/or extra-curricular activities?
The OSDE does not regulate or oversee secondary interscholastic school activities in the state; rather, this is done through the OSSAA and other associations charged with overseeing such activities (i.e., FFA, FCCLA, etc.). As such, any questions relating to medical marijuana and its relation and/or effects on interscholastic school activity participation should be directed to the OSSAA or the respective organization charged with overseeing such activity.*
A school district may establish its own policies regarding district- or school-specific activities that do not involve competition between schools and do not fall under the authority of OSSAA or other organization (as applicable).
*Note: Marijuana is on the banned substances list for the NCAA, and there is not yet an exemption for medical use – some student-athletes at the college level have lost eligibility through recommended use under medical oversight. It may be advisable for any school district policies that permit student-athletes to compete while testing positive for cannabinoids due to recommended medical use to include language in their policy putting students on notice of NCAA's total prohibition.
Employment & Human Resources
19. Can employers discriminate against a person in hiring, termination, or other employment matters?
No. State Question 788 provides:
Unless a failure to do so would cause an employer to imminently lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, terminating or imposing any term or condition of employment or otherwise penalize a person based upon the person’s status as a medical marijuana license holder. See State Question 788.
20. What if an employee exhibits reasonable suspicion of being under the influence of drugs in the workplace? Can an employer take action then?
Yes. State Question 788 further provides:
Employers may take action against a holder of a medical marijuana license if the holder uses or possesses marijuana while in the holder’s place of employment or during the hours of employment. Employers may not take action against the holder of a medical marijuana license solely based upon the status of an employee as a medical marijuana license holder or the results of a drug test showing positive for marijuana or its components.
School districts may adopt policies prohibiting any and all employees – medical marijuana license holder or otherwise –from using, possessing or being under the influence of marijuana while on school district property or while performing duties for the district. Further, districts may adopt policies for medical marijuana similar to those that may already be in existence prohibiting an individual from being under the influence of alcohol or a controlled dangerous substance as defined in 63 O.S. § 2-101.
To the extent an employer implements a drug-testing program of potential and/or current employees, school districts are encouraged to adopt a policy prohibiting the taking of any action against such applicant or employee based on their status as a medical marijuana license holder. Should an individual test positive for cannabinoids, districts should allow the individual an opportunity to provide evidence of a current and valid medical marijuana license.
21. How, if at all, might State Question 788 impact school district decisions relating to employment of bus drivers?
An individual must possess a Commercial Driver License (“CDL”) in order to legally drive and operate a school bus. CDL holders are regulated by state and federal law. While medical marijuana has been legalized in Oklahoma, federal law does not make an exception for possession or use of medicinal marijuana by an individual with a CDL. In fact, CDL holders are prohibited from failing a drug and alcohol test due to the fact they are in a “safety-sensitive” position. The U.S. Department of Transportation’s drug and alcohol testing regulations do not authorize medical marijuana use under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.
Further, while Oklahoma employers may not make adverse hiring decisions based solely on an individual’s status as a medical marijuana license holder, an employer may make a hiring decision based on the fact that an applicant is not qualified for a certain position (i.e., school bus drivers must possess a valid CDL and provide a negative drug screening in order to be qualified). Finally, bus drivers and bus maintenance employees who are required to have a CDL could be subject to random drug testing.
22. How will SQ 788 affect drug testing employees, including bus drivers?
Random drug testing of a school employee, other than those in a “safety-sensitive” position, has been held to be unconstitutional by several courts. However, for those in a “safety-sensitive” position, such as a bus driver, bus maintenance employee or one required to have a CDL, that employee may be subject to random testing.
23. Is cannabidiol (CBD) the same thing as medical marijuana?
No. Cannabidiol or “CBD” is a derivative of the cannabis plant that also has therapeutic uses, but is not included in Oklahoma’s state definition of “marijuana.” It is therefore not subject to the same restrictions as medical marijuana. By definition, CBD can contain only up to a trace amount of tetrahydrocannabinol (THC), the main psychoactive component of marijuana, so CBD products have no psychoactive effects. This is Oklahoma’s statutory definition for cannabidiol:
“ ‘Cannabidiol’ means a nonpsychoactive cannabinoid found in the plant Cannabis sativa L. or any other preparation thereof, that has a tetrahydrocannabinol concentration of not more than three-tenths of one percent (0.3%) and that is delivered to the patient in the form of a liquid” (63 O.S. § 2-801(3)).
Under state law, only specific uses are authorized for CBD with a detectable THC content (though it must always be below 0.03%). CBD that contains no detectable THC content, however, is commonly sold and used in Oklahoma with few restrictions. In general, the cannabidiol products sold in Oklahoma’s “CBD shops” do not contain detectable THC.
Under federal law, cannabidiol does not have a separate status from other marijuana derivatives, and so is still classified as a Schedule I controlled substance – even when it contains no THC. While legalization of CBD at the federal level has been discussed as a likely possibility, at this time it is still only explicitly legal at the state level under the conditions of state law.
24. Can school districts have different policies for CBD and medical marijuana?
Yes, but separate policies are not necessary. While students may not be restricted from enrolling in or attending public school due to their use of either category of cannabis-derived treatments, because they are classified differently under Oklahoma law, it is permissible for school districts to have different policies addressing CBD and medical marijuana. It is, however, not required for a school district to have a different policy governing CBD, and a district may adopt one policy that applies to both medical marijuana and CBD as long as the policy appropriately protects a student’s access to both school district services and recommended medical treatments.
25. Could CBD products be included in a school district’s general policy on the storage and administration of prescription and non-prescription drugs?
This determination must be made by a school district. There are no provisions of state law that would either require a school district to treat CBD as equivalent to other non-prescription medications, nor prohibit a district from doing so. For CBD, which is not classified as “marijuana” in Oklahoma, this appears to be a local decision. School districts should be aware that cannabidiol has not yet been clearly excluded from the Controlled Substances Act at the federal level, although drug enforcement action involving CBD is unlikely, and clarification of its status is expected to occur in the coming years.
If a school district chooses to consider CBD a non-prescription medication parents/legal guardians may authorize a school to store and administer, the requirements of 70 O.S. § 1-116.2 would apply in addition to any specific policies adopted by the district. Because of the uncertain federal status of cannabidiol, a school district should not compel a school nurse to administer CBD if the school nurse is not comfortable administering it. In such a case, a district that chooses to consider cannabidiol a non-prescription medication should ensure that a parent/guardian’s written authorization for the school to administer CBD gives explicit permission to an administrator or a non-nurse school designee to administer the student’s CBD dosage. All directions for use must be included in the parent/guardian’s written authorization.
If a school district does not choose to consider CBD a non-prescription medication subject to 70 O.S. § 1-116.2 and associated policies, and does not adopt a specific policy addressing how students may access their CBD treatments, then students who are treated using cannabidiol should be permitted to access their CBD treatments in the same manner as the district provides for access to medical marijuana treatments for qualifying students.