On this episode of the WorkSAFE Podcast, we sit down with Larry Lambert, a member of the legal team and Director of Legal and Compliance at MEM.
In the past few years, marijuana use in Missouri has been a changing landscape. First, medical marijuana became more readily available. Then, recreational use was legalized. In a short window of time, how and when marijuana can be used has changed quite a bit for Missouri residents. But what does that mean for Missouri employers?
Listen to this episode of 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.
Tip #1: Medical and recreational marijuana use are treated differently by Missouri law
In Missouri, the law treats medical and recreational use of marijuana differently. “The first thing to be aware of is that medical use is an actual right conferred now by our Missouri Constitution,” Lambert explained. “It’s a qualified right, but it’s a right.”
Conversely, recreational use is not a right, but was decriminalized. Employees don’t have a right to use recreational marijuana on the job, but it isn’t illegal to use it. This means in their off time, they can purchase products and use them without legal consequences.
What does this mean for employers?
Employees have a legally protected right to use medical marijuana. An employer can’t discriminate based on:
- Someone’s status as a qualified patient
- Having a valid ID to use lawful marijuana legally
- Someone who uses medical marijuana off of work premises and not during working hours.
However, they don’t have to allow medical marijuana on their premises or its use on the job. It’s important to understand the implications of any medical conditions that are prompting the marijuana use.
Employers should follow ADA processes. “I caution employers against – somebody saying, ‘Hey, I’ve got medical marijuana. Can I use this at work?’ – simply just saying no and leaving it there. I would go a little further, engage in that full process.”
Are there any exceptions?
If an employer has a federal license or contract, then marijuana use can be prohibited on the job. Either may require drug-free workplace policies.
The Missouri law also includes an important detail. Marijuana use can prohibited if it impacts a person’s ability to do job-related responsibilities, the safety of others, or conflicts with a required job qualification, such as operating machinery. This clause is the most-discussed portion of the law.
Marijuana impacts each person differently. At the moment, it’s difficult to judge how affected someone is. Lambert recommends reaching out to legal or employment council for advice in these situations.
Tip #2: A positive drug test is a piece of evidence
In years past, a drug test positive for tetrahydrocannabinol (THC), the psychoactive element in marijuana, was enough to take action against an employee. But these days, that’s simply not the case. If an employee tests positive for THC and has a medical card, employers can’t discriminate against them. However, Lambert says employers aren’t without other options, especially if the use is recreational.
“What the law doesn’t permit is people to be under the influence while working or on a workplace premises,” he shared. “So what we’ve been advising folks is that the drug test is kind of the start of a process in many cases now.”
Employers should have documented observations to pair with a positive test. For example, if an employee went to lunch and returned acting strangely. There currently isn’t a credible test that can prove impairment from marijuana. This makes having both proof of use, and some observations, essential before consulting an attorney.
Tip #3: The marijuana law does not impact safe driving practices
Whether people use for medical or recreational purposes, the new law doesn’t permit operating a motor vehicle while under the influence. This extends beyond cars, including things like boats and motorcycles. There are still penalties for operating vehicles under the influence, and the new law doesn’t change that.
Tip #4: A written drug policy is still a great place to start
The topic of marijuana is a stressful one for many employers. Identifying impairment is often a skill that is outside of their wheelhouse. They didn’t undergo the same training that a highway patrolman might have to identify impairment. Further, it’s difficult to objectively say that someone is impaired. Lambert highlights that this puts employers in the position of making a judgment call that’s really outside the scope of their business.
However, employers are allowed to monitor their workplace for employees with signs of impairment and preserve safe working conditions. This starts with enforcing a written policy prohibiting impairment in the workplace. Written policies create the foundation for a safety culture, where the focus isn’t just on substances, but on overall workplace health and safety.
Tip #5: You leave legalization behind when crossing state lines
When living in a state where marijuana has been legalized, it can be easy to forget that there are places where it hasn’t. A careless action, such as crossing into a state with marijuana products in your vehicles, can result in legal consequences. For example, crossing into Illinois from Missouri, recreational use is legal. However, crossing into Kansas, it isn’t. You can receive a criminal charge if you’re pulled over, medical card or not.
Some employers are based in other states, with a branch or office in Missouri. Employees driving personal vehicles on the job shouldn’t keep marijuana on their person or in their car while doing business travel. Further, employers don’t have to accommodate the presence of marijuana on the job or on an employee’s person.
Tip #6: Marijuana use is not permitted in public spaces
“The law does not permit the usage of marijuana in public spaces,” Lambert said. “It allows for the licensing at the local level. So localities can say these are permissible places.” What does that look like in practice? People can’t smoke or use marijuana products in public places, like parks and outside restaurants. Even when outside, these areas are shared public spaces, and you can be fined up to $100.
However, businesses can allow for use on private property, like a concert venue or club. Business owners can even set guidelines around the type of use. For example, a landlord can prohibit smoking – marijuana, cigarettes, or otherwise – on a property to help protect others from impairment and their investment. But that doesn’t prevent people from consuming marijuana in non-smoking forms, like snacks or oils.
Tip #7: Employers still have a right to protect their workplace
The legalization of marijuana in its many forms doesn’t prevent employers from protecting their workplace. They still are accountable for the health and safety of everyone who works there. While the law may have made this a bit more difficult and work-intensive where marijuana is concerned, it’s not impossible.
“The culture is going to be key,” Lambert shared. “That starts with having a a drug policy that’s written and enforced and then kind of evaluating your own situation.” What does your current culture look like? Who are the best candidates for additional training on impairment? How can employees best be educated on workplace policies?
Unfortunately, those who work at dispensaries aren’t always educated on the products they sell. There is a difference between inhaling and smoking marijuana, or consuming it as an edible. They stay in your system for different amounts of time, and impact people in different ways. While consumers bear the responsibility of educating themselves on that, sometimes an employer has to step in where it pertains to the workplace.
Resources mentioned in this podcast