Cannabis. Hemp. Weed. Although this plant goes by many names, it showed up on the Missouri ballot under the name medical marijuana in 2018. Across the state, residents voted to allow its medical-only use. As a result, employers should expect changes in the workplace next year – and potentially in their safety policies.
We are sitting down with a local attorney on this episode of the podcast. Larry Lambert is Associate General Counsel at Missouri Employers Mutual (MEM). First, Lambert will share what medical marijuana use means for Missouri. Then, he’ll also share some important steps employers can take before the new year. Finally, we’ll share current best practices and policies for employers to think about.
Be sure to listen to part two of this series on medical marijuana, where we’re joined by a healthcare professional to talk about marijuana’s therapeutic uses and the future of regulation.
Listen to this interview on the WorkSAFE Podcast, or read the show notes below.
Note: This discussion is about a developing topic and is for educational purposes. Be sure to consult your legal counsel when making any decisions regarding medical marijuana or products containing THC or CBD.
Medical marijuana 101: the new Missouri law
On November 6, 2018, the use of medical marijuana became legal at the state level. Article XIV was added to the Missouri Constitution, allowing certified users to use marijuana for medical purposes only. Missourians will need two documents to use it:
- Physician Certification Form. A doctor gives this form to their patient. It says that marijuana could be a good treatment for their medical problems.
- Patient Identification Card. A person must have this card to buy or use marijuana. It shows that their application to use it has been approved by the Missouri Department of Health and Senior Services.
Missouri doctors can now prescribe medical marijuana to treat certain medical problems. While the law gives a list of medical conditions, the list is not exhaustive and doctors can rely on their own expertise. If they think marijuana can help someone, they can recommend it.
Where will medical marijuana products be sold?
The law also created several licenses so marijuana can be grown, processed and sold in Missouri. The number of available Cultivation and Infused Product licenses are determined by population size, while Dispensary licenses are granted per congressional district. A limited number are available:
- 60 Cultivator licenses. This license allows someone to grow and care for cannabis plants.
- 86 Infused Product licenses. This license allows someone to use cannabis plants to make a variety of marijuana products.
- 192 Dispensary licenses. This license allows someone to open a business where marijuana products can be sold.
If the population of Missouri grows, then more licenses may be made available. Dispensary licenses are limited to 24 per each of Missouri’s eight districts.
We are currently in the “set-up” year while the State develops and implements the licensing and regulatory infrastructure. The Missouri Department of Health and Senior Services began accepting and reviewing applications for licenses in August 2019. Companies will need time to have their licenses approved, plant, harvest and bring their marijuana to the legal market, so we shouldn’t see any legal cases of marijuana use until early in 2020.
The impact of Article XIV on employers in Missouri
Many Missouri employers are wondering how this coming change will impact their workplace and their employees. The changes you need to make will depend on your industry and the kind of work you do. Are you a public or private company? Are your employees working with hazardous materials or equipment? These factors will help determine the best risk management strategy for your business.
“It’s not going to be as easy as saying ‘We’re not hiring anybody who has [marijuana] positively in their system,” Lambert said, talking about the challenges of having an applicant who uses medical marijuana. Employers across the state have helped make workplaces safer by creating drug-free workplace policies. An applicant or employee who tests positive for marijuana in one of these workplaces usually faces consequences. They could be denied hire or even lose their job. But medical marijuana may change what those situations will look like. “If you’ve got a certified user who tests positive, that’s the beginning of a process for you, not the end of a process as it may have been before.”
Medical marijuana is legal in 33 states. Eleven states have legalized recreational use. Some states, such as Colorado, allow employers not to hire potential job candidates if they test positive. However, Missouri’s law doesn’t contain that language, and residents have a constitutional right to use medical marijuana, so blanket prohibitions could put employers at legal risk. Employers should consult with counsel when developing their practices in this area.
What should I do if my employee tests positive for marijuana usage?
The path forward isn’t particularly clear yet. Lambert referenced a recent case in California where an EMS employee at a hospital was fired based on a positive THC test. The employee was a properly documented certified user who the employer did not suspect of being impaired on the job. A random drug test led to the discovery. The hospital fired the employee based on their concerns for safety and the employee sued. While this case is still working its way through the system, the hospital did lose its motion to have the case dismissed, meaning the court did not believe the hospital had an absolute right to terminate the employee based on these agreed-upon facts. While this case is undecided and ultimately will not control what happens in Missouri, it is instructive in how courts may view these situations.
Recreational marijuana use is still illegal in Missouri. This means that if your employee tests positive for marijuana without being properly certified, they have violated not only any drug-free workplace policies, but also the law. However, if a properly certified employee tests positive the only clear right employers have at this time is to prohibit this employee from being under the influence while at work. This means employers will have to carefully document an employee’s behavior that led the employer to believe the employee was under the influence and conduct a drug test to support their suspicion.
How can I know what legal exposures I might face?
Seeking out legal counsel as soon as possible is your best option to know what exposures you might have under the law. As a leader in the work comp industry, MEM seeks to provide employers with the most updated information and resources on the coming changes. However, educating yourself is one of the most important steps you can take. Then equip yourself with the legal advice you need – especially before you may have your first case of legal marijuana use in your workplace next year.
Marijuana in the workplace: types of products and impact
Medical marijuana will present employers with a new challenge. There isn’t a test to determine just how impaired, or “high” an employee is at a particular time. A positive test is simply a positive test – it confirms that person has used a marijuana product at some point in the last month or so.
What kind of medical marijuana products are available?
There are different ways to use medical marijuana. Users can smoke the plant, vaporize it through an electronic smoking device, or consume a type of marijuana-infused edible. Infused products mix marijuana with an easier way for the user to consume it. Producers can add it to pills, beverages like teas, and food products such as butters, baked goods, or even candy.
Inhaled vs. edible marijuana
Lambert explained a major challenge when it comes to marijuana – the varying impairment times of different products. Inhaled products peak quickly; the height of impairment typically hits within a half hour of consumption. “Say you have someone that takes an inhaled marijuana product,” Lambert gave an example. “The high is about a thirty-minute onset, and within as little as two hours it can be totally out of their system from an impairment standpoint. But the THC will still register in their system for a period of time, depending on a lot of factors – metabolism, how strong the marijuana you used was, all of these things.”
Edible products can have a totally different impairment time. “This changes dramatically if they use an edible, or if they vape the product. All those have different times. You can be impaired on an edible for up to ten hours.” Their impairment lasts longer as the body processes them.
The role of CBD oil
Cannabidiol (CBD) oil is a chemical compound in marijuana plants. The oil does not contain high levels of tetrahydrocannabinol (THC), or the element in marijuana that causes impairment. It also doesn’t typically result in a positive drug test, as the typical threshold for a positive drug test is higher than would result from CBD use. CBD has been legal to use in Missouri for years prior to the recent medical marijuana law.
Best practices for Missouri employers
When it comes to medical marijuana use, employers can take steps to create a safer workplace. Lambert explained three essential steps you can take today.
Educate your employees
Empower your employees to recognize signs of impairment on the job. “What it gets down to from a legal perspective is it’s really a strength of evidence issue,” Lambert said. “You don’t have to be an expert in field sobriety to make a note that you saw somebody behaving in a certain way.” An employee can record their observations. Their report, combined with a positive drug test, provides employers with stronger evidence. Together, they can indicate when an employee’s marijuana use is a problem.
That said, employees properly trained in recognizing impairment are more likely to have the confidence to act in the event an employee is impaired at work. Their documented observations are likely to be more credible. Some industries are more hazardous than others and some employers have had more issues with employees being impaired at work. While each company has to evaluate their own risk, its advisable to have a sufficient number of employees who are knowledgeable on recognizing the signs of impairment. Formal training and even certification is available.
If you experience an incident on the job, conduct an incident investigation. Do this as soon as possible. Talk to your employees. Have them write down anything they saw or heard. These statements will be important, both for your claim and from a legal standpoint.
Enforce a drug policy
Many employers enforce a drug-free workplace policy. Medical marijuana may change how they administer these policies. “Just having the zero-tolerance policy isn’t going to do what it used to do,” Lambert said. While you may not be able to prohibit certified medical marijuana users from having THC in their system, there are other things you can do to support the safety of your workplace. “The thing the law does give us,” he added, “It does give employers the right to prohibit people from being under the influence while on business.”
Put a drug policy in place that prevents employees from being impaired at work. This covers any substance that might impair someone, not just medical marijuana. Illegal drugs, alcohol, and even strong cold medicines fall under this policy.
Can I ask someone if they are a medical marijuana user?
According to the Equal Employment Opportunity Commission, you cannot ask an employee questions about medical conditions unless you can show that the information is job-related and necessary for the conduct of business. The law around what an employer can ask regarding medical conditions and treatments hasn’t changed with the passage of the new marijuana law. If you’re unsure about specifics, consult with your Human Resources department and legal counsel.
Review your job descriptions
Do you work in a high-risk industry? Are your employees handling hazardous equipment or materials? Developing comprehensive job descriptions can assist in evaluating your risk and better inform your decisions on where to invest in safety. MEM will continue to share information about medical marijuana and its impact on employers. Policyholders can also reach out for customized training recommendations. You can find sample policies and safety meeting topics in our free Resource Center.