Will the passage of adult use marijuana protect Missouri workers?

In one week, on November 8, Missouri voters will have the chance to legalize adult use marijuana in the state. 

October 17 marked two years of retail and over half a billion dollars in marijuana sales in Missouri. There are roughly 10,000 medical marijuana agents in the state of Missouri. That means there are nearly the same number of individuals approved to work in plant-touching businesses in the state as there are lawyers, bartenders, pharmacy technicians, plumbers, or insurance agents.

Aside from the number of individuals currently working in the industry, Missouri currently has over 200,000 licensed medical marijuana patients. But those numbers only tell part of the story though. While medical marijuana cards aren’t difficult to obtain, there are some hurdles and obstacles that prevent many marijuana consumers and prospective consumers from registering.

With the expected passage of recreational marijuana in Missouri, the number of consistent consumers is expected to rise drastically, additionally, those who have been hesitant to try marijuana in the past will become far more likely to try it once it’s safe and legal to obtain without the additional steps and cost of registration.

Marijuana, for most intents and purposes, will be treated no differently than alcohol. Those under the age of 21 won’t be able to make purchases, and with a 3oz purchase limit, you would be hard-pressed to find an individual who couldn’t purchase as much as they could consume in a day, and you won’t be able to drive under the influence. For long-time cannabis consumers, the ability to consume and possess without the threat of being arrested is a huge milestone.

While all of this is meaningful for a number of reasons, for businesses it means that there are questions to be answered for both employers and employees.

After decades of drug testing, what happens when employees can legally consume weed?

If approved, Amendment 3 would become effective just a month after passage on December 8, 2022.

So what should employers prepare for?

With the passage of medical marijuana, there were no protections from positive drug tests built into the language. In the case of Amendment 3’s approval, medical marijuana use becomes protected, and while vague – language pertaining to adult use could effectively mean an end to pre-employment drug screens for marijuana, for the vast majority of employers.

The language doesn’t prevent employers from pre-employment screening or enforcing drug-free workplace policies, but it does protect medical marijuana patients and opens the door for legal marijuana consumers to have protection as well.

Simplified, the language of Amendment 3 prohibits employers from discriminating against applicants or workers in hiring or termination based on either their status as a qualifying patient, including their legal use of marijuana during non-working hours, or a positive drug test for marijuana of a person who has a valid qualifying patient identification card.

Treated similarly as alcohol or prescription drugs, employers may not discriminate against or penalize medical marijuana use off in an employee’s free time – provided that it doesn’t impact their performance and that they are not working while under the influence.

 (15) Unless a failure to do so would cause an employer to lose a monetary or licensing-related benefit under federal law, an employer may not discriminate against a person in hiring, termination or any term or condition of employment or otherwise penalize a person, if the discrimination is based upon either of the following:

• (a) The person’s status as a qualifying patient or primary caregiver who has a valid identification card, including the person’s legal use of a lawful marijuana product off the employer’s premises during nonworking hours, unless the person was under the influence of medical marijuana on the premises of the place of employment or during the hours of employment; or
• (b) A positive drug test for marijuana components or metabolites of a person who has a valid qualifying patient identification card, unless the person used, possessed, or was under the influence of medical marijuana on the premises of the place of employment or during the hours of employment.

• Nothing in this subdivision shall apply to an employee in a position in which legal use of a lawful marijuana product affects in any manner a person’s ability to perform job-related employment responsibilities or the safety of others, or conflicts with a bona fide occupational qualification that is reasonably related to the person’s employment.“

Read the full text of Amendment 3 here.

Employers remain able to test employees for impairment in the case of accidents and other circumstances, and there is no restriction on employers who discipline or discharging employees for working or attempting to work while impaired.

The language of Amendment 3 is less defined as related to adult use. While the language is similar to that regarding medical marijuana users, employers are not required to allow use on property or during work hours, and employers are still able to discipline employees who work while under the influence, but there are no clearly defined protections for adult use consumers without a medical marijuana card.

“This section does not require an employer to permit or accommodate conduct otherwise allowed by this section in any workplace or on the employer’s property. This section does not prohibit an employer from disciplining an employee for working while under the influence of marijuana. This section does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because that person was working while under the influence of marijuana.”

Takeaways and insights

While Missouri employers may be allowed to take action against employees who engage in recreational consumption, the protections afforded to medical marijuana card holders could make it it costly and problematic for employees to differentiate between the two categories.

With the expected expanse of marijuana to adult use and the accompanying rise in consumers, it may be in the best interest of employers to create uniform policy and guidelines that apply equally to both medical and adult use consumers of marijuana. While not required by law, the labor and cost to revise, create, adapt, and implement two separate policies will be too great for many businesses. Additionally, any employee who could be reprimanded under a policy that does not recognize simple recreational consumption need only spend the $25 fee with the state to be covered legally by a company’s medical marijuana policy.  

In preparation for December 8, employers should work with their human resources personnel to evaluate and improve their current drug testing and impairment policies. Finding and creating solutions for hiring, training, and implementation. One point of evaluation that should be especially important to employers is with regard to proving impairment, outside of a drug test alone. While employers are certainly capable of disciplining or terminating employees who are working while intoxicated, it will be important to have a method and standard policy written before it becomes necessary. It’s also worth noting that many insurers may have varying policies – on how these situations are handled, it could be costly to the company if the policies of their insurer don’t align with state law.