On November 8, Missouri residents voted to adopt “Amendment 3,” which would amend the Missouri Constitution to legalize recreational marijuana. Amendment 3 goes into effect on December 8. In addition to legalizing recreational marijuana, Amendment 3 brings changes to Missouri’s medical marijuana law, which was adopted in 2018.
Missouri employees are now able to legally use recreational marijuana outside the workplace during non-work hours. However, employers are still permitted to discipline, terminate, or otherwise discriminate against employees who use marijuana for recreational purposes. Amendment 3 prohibits marijuana use and possession in the workplace and prohibits employees from working under the influence of marijuana.
Missouri residents previously voted to legalize medical marijuana in 2018. At the time, the law did not contain any protections for employees who legally used medical marijuana. Instead, the law allowed employers to drug test and terminate employees who tested positive for marijuana, even if they had a valid medical marijuana identification card. After December 8, however, the law changes to prohibit employers from discriminating against employees based on:
- having a valid medical marijuana identification card, as either a qualifying patient or a primary caregiver,
- possession of a valid patient identification card and the legal use of marijuana off the employer’s premises during nonworking hours; or
- a positive drug test for marijuana if a person has a valid patient identification card.
These protections do not 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.” It also does not apply to federal contractors or other employers whose failure to prohibit marijuana use risks the loss of monetary or licensing-related benefits under federal law.
Missouri employers may continue to prohibit workplace use and possession and otherwise discipline or terminate an employee for being under the influence during work hours. But employers will continue to have difficulty with determining whether an employee is “under the influence.” The term is not defined in Amendment 3.
Amendment 3 did not amend the previous prohibition on a private right of action for employees suffering an adverse employment action for reporting to work under the influence. Employees are still prohibited from suing employers for wrongful discharge or discrimination if employers discipline employees for working while under the influence of marijuana.
Missouri employers should promptly review and revise their existing drug-testing policies for compliance with Amendment 3, especially related to medical marijuana. The policy should include a protocol to determine whether an employee has a valid medical marijuana identification card before any adverse action is taken against the employee for a positive drug screen for marijuana and ensure that information is kept confidential as required under the Americans with Disabilities Act.
Employers are encouraged to remind their employees of their policies related to marijuana and any changes as a result of Amendment 3. For employees who may potentially fall under an exception, employers should clarify the scope and applicability of the exception for their employees. Employers that are federally required to maintain a drug-free workplace can and should continue drug testing and prohibit recreational and medical marijuana use.