As recent headlines have touted, Missouri Amendment 3 legalizes recreational marijuana in the State (although marijuana is still unlawful under federal law). Amendment 3 also made a number of significant, albeit less publicized, changes to the State's existing medical marijuana laws. These medical marijuana changes will likely have an equal – if not greater – impact on the workplace. Amendment 3 takes effect on December 8, 2022, and Missouri employers must be ready to adjust to the changes it brings.
Can Employers Still Prohibit the Use of Marijuana in the Workplace?
Yes. Amendment 3 does not prohibit Missouri employers from having policies restricting marijuana use or intoxication in the workplace. Specifically, Missouri employers are not required to permit or accommodate the possession, consumption or sale of marijuana in the workplace or on the employer's property. Employers also may prohibit and/or take adverse action against an employee for working while under the influence of marijuana during work hours. Importantly, all individuals are prohibited from operating any motor vehicle or other motorized form of transport while under the influence of marijuana (including outside the workplace).
Is Marijuana Use Considered a Protected Activity in Missouri?
Not quite. While it is no longer illegal, recreational marijuana can still be the basis of an adverse employment action, and it can still be prohibited by Missouri employers. That said, Amendment 3 provides new and enhanced protections for marijuana users with valid medical marijuana patient ID cards. While Missouri recognized the legal medical use of marijuana in 2018, Amendment 3, for the first time, provides employment protections to those with medical marijuana cards.
Amendment 3 specifies that employers are now prohibited from discriminating against or taking adverse action against an employee who has a valid medical marijuana patient ID card for (1) the off-site use of medical marijuana during non-working hours or (2) testing positive for marijuana in an employer administered drug test.
There are a few exceptions. These protections do not apply to employers who would otherwise lose a monetary or license-related benefit under federal law (i.e., DOT regulations). In addition, they do not apply if the employee used, possessed, or was under the influence of medical marijuana at work or during the hours of employment or under circumstances where the legal use of marijuana affects the ability to perform job-related employment responsibilities, affects the safety of others, or conflicts with a bona fide occupational qualification that is reasonably related to the person's employment.
Can Employers Still Drug Test Employees for Marijuana?
Yes, but with caution. While there are no prohibitions in Amendment 3 for disciplining employees for testing positive for recreational use of marijuana, the new law prohibits employers from making employment-related decisions based upon a positive drug test for qualifying patients with medical marijuana cards (if their positive test was due to lawful consumption off the employer's premises and not during work).
There also remain other hurdles for marijuana drug testing. As has been the case for the past four years, there is still no reliable test on the market to measure marijuana "impairment" or "influence," meaning an employee may test positive for THC, but may not be currently "impaired" if they consumed marijuana days or weeks before.
Should Employers Update Policies Regarding Background Checks for Marijuana-related Offenses?
Possibly. The new law allows individuals with certain nonviolent, marijuana-related offenses to petition or automatically have their records expunged. While this process may take some time, the effect of an expungement will restore the individual to the status the person occupied prior to his or her arrest, plea or conviction as if such event had never taken place.
The new law also specifies that individuals with expunged marijuana-related offenses are not required to acknowledge the existence of such a criminal history record or answer questions about the record in any application for employment, regardless of whether the person has received notice from the court that an expungement order has been issued.
Next Steps for Employers.
In light of the changes taking effect December 8, 2022, employers should re-evaluate their current drug testing policies and practices, including possible revisions to employee handbooks and new-hire onboarding procedures. And employers who administer post-accident testing for marijuana should contact their workers' compensation insurance carriers to understand the implications of the new law's restrictions on the handling of workplace injury claims. Additionally, employers are strongly encouraged to implement training for human resource employees, managers and/or supervisors on procedures dealing with employee use of medical marijuana and recreational marijuana, the signs of impairment at work and company policy for addressing working under the influence of marijuana.
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