An amendment to Missouri law decriminalizing the purchase, possession and use of recreational marijuana went into effect Dec. 8. This amendment could cause some headaches for employers.
Missouri voters passed Constitutional Amendment 3 on Election Day 2022, which decriminalized marijuana for recreational and personal purposes, according to law firm Baker Sterchi Cowden & Rice.
The amendment states that employers:
- may not discriminate against a person for having a medical marijuana card, lawfully using recreational marijuana during off-duty hours or testing positive for marijuana
- can still enforce drug-free workplace rules and can discipline or terminate employees for using, possessing or being under the influence of marijuana at work
- should evaluate the use of background checks for applicants in areas where “Ban the Box” ordinances aren’t in use, and
- should continue to defer to applicable federal regulations in industries where a federal regulation prohibits employee use of illegal drugs.
There are still some unanswered questions about how legal recreational marijuana will impact the workplace in Missouri and employers should keep in mind that:
- drug testing and drug-free workplace rules must be applied in a non-discriminatory manner with regard to age, race, sex, disability or any other protected class
- medical use of marijuana will continue to fall under the Americans with Disabilities Act and reasonable accommodations may include waiving a positive marijuana test result, and
- testing for THC levels is “notoriously difficult, as habitual users build up a higher ‘baseline’ level of THC” and such a person may show high levels but might not be impaired.
Arguably the biggest open question is regarding an employer’s potential liability for discrimination based on marijuana use. Unlike the Missouri Human Rights Act for medical marijuana, the amendment doesn’t provide a private right of action for lawsuits. Whether it will provide an exception for causes of action for wrongful termination is unknown at this time.
In the short term, Baker Sterchi Cowden & Rice said the amendment’s lack of a regulatory framework covering employment issues will cause headaches for employers. The law firm said that employers “will have to wait and see, subject to the vagaries of the court system.”