Despite its continuing illegality under federal law, on November 6, 2018, Missouri voters approved Amendment 2, which legalizes under state law the use of medical marijuana in certain circumstances. Amendment 2 does not, however, cover the recreational use of marijuana, and recreational marijuana use remains illegal under both state and federal law. Under the new law, state-licensed physicians are now permitted to recommend and prescribe medical marijuana to patients with qualifying conditions. The list of qualifying medical conditions is broad. Patients must apply for and obtain a medical marijuana identification card from Missouri’s Department of Health and Senior Services prior to any medical marijuana use. Card-holding patients and their registered caregivers are allowed to grow marijuana plants in their home and to purchase up to a specified quantity of marijuana for medical use. The state will begin accepting applications for identification cards on or before August 3 of this year.
The new state law does not authorize or permit employees to use marijuana while at work or while on an employer’s premises, nor does it authorize employees to work while impaired by any marijuana use that occurred prior to the start of the employee’s work shift. Thus, employers still have the ability to and should enforce their established drug policies, procedures, and testing, even as to medical marijuana use. In fact, Amendment 2 contains a specific carve-out that bars employees from filing claims against their current, former, or prospective employers for wrongful discharge or discrimination based upon the employer’s enforcement of a policy that prohibits working or attempting to work while under the influence of marijuana, even for medicinal purposes. Employers should review and revise their existing drug policies to explicitly address medical marijuana usage (in all forms, including smoking, ingesting, vaping, and use of oils) and should educate their employees regarding the same.
However, in practice, it may be difficult for employers to determine if an employee is “under the influence” of marijuana due to the lack of accurate testing methods. Unlike alcohol testing, which can determine a person’s current impairment level, marijuana testing is less precise due to the fact that marijuana can be detected in a person’s system long after any impairment effect has left the body. Accordingly, a test result which is positive for marijuana does not necessarily mean that an employee was actually impaired at the time of the testing. This could prove to be a tricky situation for employers. Employers must train their supervisors to spot other indicia of marijuana impairment. Typical signs of impairment include red eyes, lethargic demeanor, lack of coordination, strong odor of marijuana, disorientation/confusion, and/or body tremors. If one or more of these signs or symptoms are observed, supervisors should document their observations (through notes, photos, or even video recording) so that this documentation can be used in the employer’s defense if the employee challenges the employer’s conclusion that the employee was impaired.
Another area of uncertainty for employers arising out of the new medical marijuana law is whether employers are required to make accommodations for employees who are legally using medical marijuana. Virtually all of the enumerated “qualifying conditions” set forth in Amendment 2 would likely also qualify as a “disability” under the Americans with Disabilities Act (“ADA”) and the Missouri Human Rights Act (“MHRA”). Both of these statutes require employers to make “reasonable accommodations” for an employee’s “disability.” This does not mean that an employer must automatically make an accommodation and permit medical marijuana use as a “reasonable accommodation” for an employee’s health condition, particularly in instances where such marijuana use may endanger the health and safety of the employee or others (i.e., use of heavy equipment or machinery, operation of a motor vehicle, etc.). However, a question remains as to whether allowing medical marijuana use could be considered a “reasonable accommodation” in certain circumstances. Given that marijuana remains illegal under federal law, it is not likely that the Equal Employment Opportunity Counsel would pursue any charges filed by employees for ADA violations arising out of medical marijuana use, at least, so long as marijuana continues to be classified under federal law as an illegal drug. However, that may change in the future. In addition, the EEOC’s state equivalent, the Missouri Commission on Human Rights, may take a different position and pursue such charges based upon the new state law allowing the use of medical marijuana. Given that the law is brand new in Missouri, this type of issue will likely play out in the courts in the coming years.
With the many uncertainties that come with Missouri’s new medical marijuana law, as with any new law, employers would be wise to review their existing policies and practices to ensure that they are current and to make any necessary modifications and to consult with legal counsel on any issues which may arise in the workplace concerning medical marijuana.
For more information you can contact Attorney Theresa A. Phelps.