The voters of Missouri have spoken. During the 2022 Midterm Election, voters passed Amendment 3—a ballot measure legalizing the possession, use, and sale of marijuana to adults 21 years of age or older in the Show-Me-State. Among other things, Amendment 3 includes important information that every Missouri employer should know before the December 8, 2022, effective date.
The primary takeaway for employers just may be what Amendment 3 does not do. That is, it does not prevent employers from continuing their drug- and alcohol-free workplace policies and practices. Even though it will be lawful for individuals in Missouri to use marijuana recreationally and medicinally, employers are still permitted to bar employees from being under the influence of marijuana in the workplace and may continue to test for marijuana impairment in some circumstances. In fact, the Amendment makes clear that employees have no right of action against employers for disciplining them if they work while under the influence of marijuana.
The most significant addition as it relates to marijuana in the workplace is with respect to medical marijuana users. Amendment 3 makes it illegal for Missouri employers to discriminate against a “person” in hiring, discharging, or otherwise penalizing them, based on:
(1) the individual’s status as a medical marijuana cardholder (whether for themselves or in the capacity of a primary caregiver); or
(2) the individual testing positive for or lawfully using medical marijuana, so long as it is off the employer’s premises during non-working hours.
It is critical to recognize that Amendment 3 specifically applies these protections to “persons” as opposed to only “employees.” Therefore, Missouri employers likely cannot rescind job offers to cardholding applicants who test positive for the lawful, off-duty use of medical marijuana.
To be clear, these proscriptions do not come without limitations. Employers still may take action against individuals when the lawful use of medical marijuana affects (or would affect) the individual’s ability to perform job-related responsibilities, conflicts with a bona fide occupational qualification that is reasonably related to the person’s employment or otherwise affects the safety of others.
When it comes to an individual’s use of recreational marijuana, employers may treat that situation similarly to how they treat the legal consumption of alcohol: zero tolerance in the workplace. But unlike the consumption of alcohol—which employers are prohibited from disciplining employees for when they are imbibing off-duty—no such prohibitions exist in Amendment 3 for recreational marijuana. In other words, employers may still discipline employees or refuse to hire applicants for their lawful use of recreational marijuana, even when such use occurs during non-work hours and off the employer’s premises.
What This Means For You
While the passage of Amendment 3 has expanded the rights of employees and applicants who qualify as medical marijuana cardholders, not much has changed with respect to how employers can handle the recreational use of marijuana by employees, even in the context of off-duty consumption. Even so, the statewide decriminalization of recreational use and possession of marijuana may cause employers to reconsider how they will handle employees who may now lawfully indulge in the substance when off-duty. Missouri employers have less than thirty (30) days to revisit their workplace drug policies and practices in light of these changes to ensure they comply with local, state, and federal laws.
Our Cannabis team is tracking the development of these rules and regulations and will continue to share developments that affect our clients’ businesses. Subscribe to our Cannabis Law Now blog for up-to-date information.
If you have any questions, please contact Steve Levine, Brittany Falkowski, Scott Meyers, or your Husch Blackwell attorney.