Disabilities (ADA): Oklahoma
Federal law and guidance on this subject should be reviewed together with this section.
Authors: Eva C. Madison and Michelle Barrett Falconer, Littler
- In addition to the federal equal opportunity laws, Oklahoma employers must comply with a number of state and local antidiscrimination laws, including the Oklahoma Anti-Discrimination Act. See Disability Discrimination in Oklahoma Anti-Discrimination Act.
- Oklahoma permits the use of medical marijuana. See Medical Marijuana.
- Localities including McAlester, Norman and Tulsa have requirements pertaining to disability discrimination. See Local Requirements.
Disability Discrimination in Oklahoma
In addition to the federal equal opportunity laws (see Employee Management > EEO - Discrimination), Oklahoma private employers must comply with state antidiscrimination laws, including the Oklahoma Anti-Discrimination Act. Where both federal and state discrimination laws apply, there may be conflicts, and the law more generous to the employee should be followed.
Oklahoma employers may also be subject to local laws prohibiting disability discrimination. See Local Requirements.
Oklahoma Anti-Discrimination Act
The Oklahoma Anti-Discrimination Act (OADA) specifically prohibits an employer from:
- Discriminating against a qualified individual with a disability because of genetic information or disability;
- Segregating or classifying employees or job applicants because of genetic information or disability;
- Discriminating in job apprenticeship, training or retraining programs, and employment advertising; or
- Taking a retaliatory action against an individual who opposes unlawful practices or participates in an investigation or proceeding under the OADA.
The OADA covers all private employers, regardless of size. Individuals are excluded from the definition of employers and therefore cannot be named as defendants in a discrimination lawsuit.
Because the scope of the OADA is broader than that of the Americans with Disabilities Act (ADA) (i.e., it extends to all private employers, in contrast to the ADA's coverage of employers with 15 or more employees. See Employee Management > Disabilities (ADA) > ADA Employer Applicability), smaller Oklahoma employers should be mindful that they may be subject to state law requirements to make reasonable accommodations.
The following are expressly excluded from the definition of employer:
- Native American tribes; and
- Bona fide membership club, other than a labor organization that is exempt from taxation.
What Is a Disability?
Similar to the ADA, an individual with a disability is defined as a person who:
- Has a physical or mental impairment that substantially limits one or more major life activities;
- Has a record of such impairment; or
- Is regarded as having such an impairment.
+Okla. Stat. Ann. tit. 25, § 1301(4). Oklahoma courts look to analogous federal statutory provisions (such as the Title VII, the ADEA and the ADA), as well as federal case law, to interpret the Act. For this reason, federal case law provides important guidance to Oklahoma courts. In fact, the OADA expressly states that a defending employer may allege any defense that is available under the Rehabilitation Act, the ADA or the Genetic Information Nondiscrimination Act. Damages are limited to back pay and liquidated damages. Emotional distress and punitive damages are not available.
Duty to Accommodate
Unless an accommodation would impose an undue hardship on the operation of the employer's business, the OADA explicitly requires an employer to accommodate a qualified individual's disability.
With respect to the accommodation of reassignment, the 10th Circuit (which includes Oklahoma), along with the 7th and DC Circuits, has held that the ADA does require an employer to place an employee with a disability, who is minimally qualified for a position, into the position in lieu of a more qualified candidate. See The 7th Circuit Changes Its Position on Assigning Employees With Disabilities to Vacant Positions. Other courts have held that the ADA does not necessarily require an employer to place an employee with a disability in a job for which there is a better applicant, provided the employer has a policy and/or consistent practice of hiring the best applicant. As the issue of whether an individual with a disability, who is minimally qualified for a position, should receive "preferential" treatment in reassignment decisions is evolving, it is advisable to consult with employment counsel when considering reassignment as a potential reasonable accommodation.
The Oklahoma Office of Civil Rights Enforcement (OCRE) has a Worksharing Agreement with the Equal Employment Opportunity Commission (EEOC) whereby the EEOC is empowered to investigate, conciliate and seek remedies for unlawful discrimination.
Before an individual can file a private cause of action in court, the individual must exhaust his or her administrative remedies by filing a charge of discrimination within 180 days. If a plaintiff fails to file a charge with the EEOC or otherwise fails to exhaust the administrative remedies under the OADA prior to filing suit, the plaintiff lacks standing to pursue his or her claims. The statutory provisions are mandatory; failure to comply precludes judicial relief under the OADA, and Oklahoma courts have held that the individual statutory requirements are jurisdictional.
An employer is required to post a notice that outlines Oklahoma's law against discrimination in the workplace.
An employer may not require or seek to obtain or use genetic information of an employee or prospective employee (other than in connection with the determination of insurance coverage or benefits). Genetic information means information from the results of a genetic test. Excluded from the definition are family history and results from:
- Routine physicals;
- Blood or urine analysis;
- Tests to determine drug use;
- Tests to determine the presence of HIV; or
- Other tests commonly accepted in clinical practice.
In June 2018, Oklahoma voters approved a ballot measure providing for the legal use of medical marijuana. Effective July 26, 2018, Oklahoma permits the use of medical marijuana by registered users. In addition, the Oklahoma Medical Marijuana Authority proposed emergency rules to govern the administration of the law.
Under the law, an employer may not discriminate against a person in hiring, termination or any other terms or conditions of employment, or penalize a person due to the person's status as a medical marijuana license holder. Similarly, an employer may not take action against a license holder based on the person's status as a license holder or the results of a drug test that shows a positive result for marijuana or its components. However, an employer may take action against a license holder who uses or possesses marijuana while at work or during work hours. 63 Okl. St. § 425. For more details see Employee Health: Oklahoma. Further, see Future Developments.
While the use of medical marijuana may be legal under Oklahoma law, it is still a Schedule I substance under the Federal Controlled Substances Act and, therefore, illegal under federal law. In other words, regardless of state law, employers may follow federal law in prohibiting employee drug use. For example:
- While the federal ADA does protect individuals who are former or recovering drug addicts from discrimination by employers, it also specifically permits an employer to take an adverse action (e.g., terminate, discipline) against employees on the basis of current illegal drug use. Therefore, an individual who currently abuses an illegal drug like marijuana is not considered to be an individual with a disability under the ADA.
- The federal Drug-Free Workplace Act of 1988 requires covered employers to publish policies supporting a drug-free workplace and to report and discipline employees who engage in drug-related crimes occurring in the workplace. An employer that fails to comply may risk its eligibility to compete for federal contracts. Thus far, courts have upheld an employer's right to enforce a drug-free workplace even if an employee is using marijuana for medical purposes.
An Oklahoma employer should:
- Exercise caution in dealing with employees who are registered medical marijuana users under state law and ensure that employees are afforded reasonable accommodations where necessary due to the employee's underlying medical condition that gave rise to the need to use medical marijuana;
- Review its drug testing policies and reasonable accommodation policies and train supervisors to understand whether an employee is impaired. Supervisors and HR should also be trained on how to handle disciplining an employee who tests positive (e.g., providing employee a reasonable opportunity to contest the discipline);
- Address the policy on the use of medical marijuana within the written policy on substance abuse. For example, if an employer will treat medical marijuana just as it treats other illegal drug use, a published policy advising employees and applicants of that fact will help individuals who may be considering the use of medical marijuana to make an educated decision about how that use may affect their employment; and
- Be cautious when implementing workplace policies that deal with the use of legally prescribed medication, generally, including legally prescribed medical marijuana. The ADA does not permit blanket prohibitions against on-the-job use of prescription medications in general. Thus, while drug testing policies can include legally prescribed drugs, an employer cannot have a zero-tolerance policy that permits adverse action (e.g., termination, demotion) against any employee who tests positive for prescription medication. Instead, following a positive test, the employer should ask if the employee is taking any prescribed drugs that would explain the positive result.
An Oklahoma employer may institute a policy against employees using or being under the influence of marijuana in the workplace. In addition, an employer may implement drug-free workplace policies and require employees to disclose prescription drugs that may adversely affect judgment, coordination or the ability to perform job duties. If an employee discloses that he or she uses a prescription drug, the employer should first request medical certification regarding the effect of the medication on the employee's ability to safely perform his or her essential job functions. The employer should then engage in the interactive process to determine whether a reasonable accommodation would enable the individual to remain employed.
For public accommodation purposes, Oklahoma protects the rights of an individual who is blind, physically handicapped, deaf or hard-of-hearing to be assisted by a guide, signal or service dog. Such dogs must be specially trained for that purpose. A dog used by an individual who is deaf or hard-of-hearing must wear an orange identifying collar. +Okla. Stat. Ann. tit. 7 § 19.1.
Emotional Support Animals
Oklahoma laws do not address emotional support animals in the workplace or in places of public accommodation.
Service Animal Trainers
Service animal trainers from a recognized training center receive similar protections as those provided to an individual with a disability in places of public accommodation. +Okla. Stat. Ann. tit. 7 § 19.1.
For a discussion of the federal ADA service animal requirements, please see Disabilities (ADA): Federal > Service Animals.
McAlester Disability Discrimination
The McAlester Human Relations Ordinance provides that it is a discriminatory practice for an employer with 15 or more employees to fail or refuse to hire, to terminate or to otherwise discriminate against an individual with respect to compensation, terms, conditions, privileges or responsibilities of employment, because of disability, genetic information or any other characteristic protected by law. An employer is also prohibited from limiting, segregating or classifying employees in a way that would deprive them of employment opportunities or otherwise adversely affect their status because of disability or genetic information. The Ordinance also prohibits notices or advertising indicating a preference, limitation, specification or discrimination based on disability or genetic information. However, an exception applies if the preference, limitation, specification or discrimination based on disability is a bona fide occupational qualification for employment. +McAlester, Oklahoma Code of Ordinances Sec. 58-19; +McAlester, Oklahoma Code of Ordinances Sec. 58-64; +McAlester, Oklahoma Code of Ordinances Sec. 58-68.
Norman Disability Discrimination
The Norman Civil Rights Ordinance provides that it is a discriminatory practice for an employer with five or more employees to fail or refuse to hire, to terminate or to otherwise discriminate against an individual with respect to compensation, terms, conditions, privileges or responsibilities of employment, based on a classification on the basis of, among other things, handicap. The Ordinance also prohibits an employer from taking a retaliatory action against an individual who opposes unlawful practices or participates in an investigation or a proceeding under the Code. +Norman, Oklahoma Code of Ordinances Sec. 7-103; +Norman, Oklahoma Code of Ordinances Sec. 7-104; +Norman, Oklahoma Code of Ordinances Sec. 7-108.
Tulsa Disability Discrimination
The Tulsa Human Rights Ordinance provides that it is a discriminatory practice for a city contractor to fail or refuse to hire, to terminate or to otherwise discriminate against an individual with respect to compensation, terms, conditions or privileges of employment on the basis of disability, among other protected characteristics. +Tulsa, Oklahoma Code of Ordinances Sec. 110.
Medical Marijuana Law Amended
The Oklahoma Medical Marijuana and Patient Protection Act (the Act) clarifies an employer's ability to discipline medical marijuana license holders.
An employer may refuse to hire, discipline, terminate or otherwise penalize an applicant or employee on the basis of a positive test for marijuana components or metabolites if:
- The applicant or employee does not possess a valid medical marijuana license;
- The licensee possesses, consumes or is under the influence of medical marijuana while at the place of employment or while fulfilling employment obligations; or
- The applicant or employee is in a position involving safety-sensitive job duties.
A safety-sensitive position 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. This includes:
- The handling, packaging, processing, storage, disposal or transport of hazardous materials;
- Operating 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, which, if it malfunctioned, could result in injury or property damage;
- Firefighting duties;
- The operation, maintenance or oversight of critical services and infrastructure, including electric, gas and water utilities, power generationor 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;
- Dispending pharmaceuticals;
- Carrying a firearm; or
- Direct patient or child care.
The Act does not require an employer to permit or accommodate the use of medical marijuana on the property or premises of employment or during the hours of employment. Likewise, the Act does not require the employer, insurer or workers' compensation carrier to reimburse a person for costs associated with the use of medical marijuana. The Act does not prevent an employer from having policies regarding drug testing and impairment in accordance with Oklahoma law.
63 Okl. St. § 427.8, as added by +2019 Bill Text OK H.B. 2612. This law becomes effective 90 days after the Legislature adjourns sine die, which must take place by May 31, 2019. For more information, please see Employee Health: Oklahoma.