On November 6, 2018, Missouri’s voters approved a medical marijuana ballot initiative, Amendment 2, while rejecting two competing medical marijuana initiatives on the ballot. This constitutional amendment empowers doctors to authorize patients to buy medical marijuana for the treatment of a variety of conditions. It likewise provides that dispensaries may sell marijuana for medicinal purposes. Amendment 2 does not cover recreational use of marijuana, which is currently allowed in nine states. Missouri is the 31st state to legalize medical marijuana. While Amendment 2 authorizes use of marijuana for medicinal purposes, this is not a “free pass” for employees. Amendment 2 does not allow employees to use marijuana while working, on the employer’s premises, or to work while impaired by marijuana use that occurred prior to the employee’s work shift. With that said, the passage of Amendment 2 will likely create multiple issues of varying complexity for Missouri’s employers for years to come, including:
|Reasonable Accommodation and Other Issues under Disability Discrimination Laws.
A physician may provide a “Qualified Patient,” as defined in Section 1.1(15) of Amendment 2, with a certification the patient has a qualifying medical condition identified by the Amendment. The list is lengthy and includes cancer, epilepsy, glaucoma, intractable migraines, debilitating psychiatric disorders (including PTSD), HIV/AIDS, any terminal illness, and catch-all provisions that leave the determination of whether a qualifying medical condition exists to the professional evaluation of a physician. Virtually every condition listed in the text of Amendment 2 would qualify as a disability under the Americans with Disabilities Act (“ADA”) or the Missouri Human Rights Act (“MHRA”). Once an employer has notice that medical marijuana has been recommended to an employee, the employer will need to consider any related issues that arise under the ADA and MHRA, including reasonable accommodation issues. It is important to note, however, that the ADA does not require employers to accommodate the current use of illegal drugs or misuse of prescription drugs.
|Discrimination or Retaliation Claims Based on Medical Marijuana Use.
Employers may face potential claims of discrimination or retaliation by employees who may contend that they were discriminated against or retaliated against for medical marijuana use. Amendment 2 has attempted to specifically protect employers from discrimination claims in Section 1.7(1)(d) by barring employees from bringing a claim against their current, former, or prospective employer for wrongful discharge or discrimination based on the employer’s prohibiting employees from working while “under the influence” of marijuana or employer’s discipline (including termination of employment) of employees for working or attempting to work while under the influence of marijuana.
While the language of Section 1.7(1)(d) attempts to protect employers, concerns exist with how an employer will establish that an employee was working or attempting to work “under the influence.” Unlike alcohol testing (where a breathalyzer is effective), there is no straight-forward and effective test for whether an individual is presently “under the influence” of marijuana, although employers may wish to investigate, at least for certain positions, utilizing the standards adopted by the Department of Transportation. However, there is no definition of “under the influence” in Amendment 2. Employers will need to rely heavily on the physical signs and symptoms of marijuana use – i.e., red eyes, the strong odor of marijuana, appearing disoriented, and body tremors. This will likely be a challenge for many employers.
Additionally, while early cases in other states supported employers who terminated employees for medical marijuana use or abuse, more recent cases in Massachusetts and Rhode Island have found in favor of employees who were terminated for testing positive for medical marijuana use. Medical marijuana related terminations are almost certain to lead to employment discrimination challenges in Missouri’s courts.
|Off-Duty Use of Medical Marijuana.
Missouri has a statute (Section 290.145) protecting an employee from adverse action by most employers for the off-duty use of alcohol or tobacco products, unless such use interferes with the duties and performance of the employee. While marijuana technically is not covered by the plain language of that statute, many individuals anticipate that the statute will be raised to challenge drug testing for off-duty activities, including medical marijuana use, that otherwise are lawful under Missouri law.
|Employee Safety Risks and Safety-Sensitive Positions.
Legalized use of medical marijuana creates potential negligent hiring, negligent supervision, and negligent retention issues if an employee under the influence of marijuana causes injury to a non-employee. Employers will need to be most wary when an employee works in a position that requires the employee to operate a motor vehicle or other heavy equipment or in other safety-sensitive positions.
Employers can address this issue by considering adding a section to their drug-testing policy to address medical marijuana use and impairment, similar to provisions prohibiting opioid/narcotic use. This is particularly important where employees operate motor vehicles, heavy machinery, or who work in other safety sensitive positions.
|Workers’ Compensation and Unemployment Compensation Issues.
The Missouri Workers’ Compensation Act allows for the reduction or forfeiture of workers’ compensation benefits due to an employee’s use of alcohol and non-prescribed controlled drugs (Section 287.120.6). Because Amendment 2 requires a medical certification for individuals to obtain medical marijuana, it is possible that Section 287.120.6 will not apply to reduce benefits for the use of medical marijuana. Likewise, with unemployment compensation claims, it is up in the air (and questionable) whether medical marijuana use will be considered “misconduct” connected with work for purposes of disqualifying an applicant from receiving unemployment benefits. Stay tuned for further developments on both of these issues.
Federal law continues to prohibit the use, possession, sale, transfer, and manufacture of marijuana, although the federal government has consistently refused to enforce federal drug laws in incidents involving marijuana that would otherwise be lawful under state law.
Federal regulations will likely create compliance concerns for employers. Federal contractors are subject to the Drug Free Workplace Act, which requires certain federal contractors to publish a policy prohibiting the use of illegal drugs. Similarly, the U.S. Department of Transportation’s regulations prohibit illegal drug use. These (and other) federal requirements are likely to create a legal quandary for employers attempting to balance federal requirements with legal medical marijuana use.
- The fact that Missouri’s voters have legalized medical marijuana does not mean employers have to tolerate use of, possession of, or working under the influence of marijuana at work. However, where working under the influence is suspected, and the employer believes the marijuana was consumed off-duty, employers should consider whether there is reasonable suspicion that impaired performance resulted from marijuana use before requiring drug testing or considering adverse action.
- Employers should anticipate that disability issues will arise under the ADA and MHRA, including requests for reasonable accommodations involving the use of and possession of medical marijuana. Where such issues arise, employers should consider consulting with legal counsel of their choosing.
- Employers (especially employers who operate in multiple states) should be aware that there continues to be substantial variation under federal law and the laws of multiple states regarding what is permitted/required for medical and/or recreational use of marijuana. Employers should familiarize themselves with the marijuana laws in each state where they operate and any federal regulations that may apply to the employer. Employers should also consider working with legal counsel to revise handbooks and/or applicable policies to address the changing landscape of marijuana laws, including Missouri’s Amendment 2.