Nearly a year ago Missouri voters approved Amendment 2, legalizing the use of medical marijuana in the state. The first dispensary will not open until 2020, but Missouri is on track to implement Amendment 2 by the end of this year, with applications for patients and businesses already being accepted. In the wake of Missouri entering this growing movement, speculation has abounded as to how this amendment might affect Missouri employers. Amendment 2 brings with it a host of considerations for Missouri employers given the prospect of employees, and potential new hires, using medical marijuana lawfully. Almost a year later, and on the verge of implementation, things remain relatively uncertain for Missouri employers and likely will remain that way for the foreseeable future.
There are aspects of Amendment 2 easy enough for employers to understand. Amendment 2 expressly prohibits the consumption of marijuana in public places, meaning employers need not fear an office full of employees consuming marijuana at their desks. It’s also clear an employer can still test employees, or prospective employees, for marijuana. But what happens if an individual tests positive? No one knows right now. Missouri law does protect employees from termination, and individuals from refusal to hire, for lawful use of alcohol and tobacco products while not at work and off the employer’s premises so long as the use does not interfere with the employee’s performance or duties. Whether this extends to employees and prospective employees lawfully using medical marijuana in Missouri is undecided. Looking beyond Missouri, there is little to be gleaned from other states. Fewer than half of states with legal medical marijuana protect employees and prospective employees from termination or refusal to hire based on a positive marijuana test. And in some states, courts have sided with employers who terminate or refuse to hire on the basis of a positive test. There are, however, several states that have sided with employees on this issue. For its part, Amendment 2 does not expressly prohibit Missouri employers from firing, or refusing to hire, based on positive marijuana tests, even if the individual has a prescription. Unfortunately for Missouri employers, clarity on this topic will probably include some litigation under the Missouri anti-discrimination statute, which is the statute offering protection for lawful employee use of alcohol and tobacco in Missouri.
Further complicating the matter for Missouri employers is the question of what they should do, or are allowed to do, when they have an employee high at work. Amendment 2 does, without a doubt, provide that a Missouri employer can discipline, or even terminate, an employee for being “under the influence” of marijuana at work without fear of an anti-discrimination or wrongful discharge claim. This, however, seems to be where certainty ends for Missouri employers at the moment. The Amendment provides no definition for “under the influence,” and offers no guidance to determine whether an individual is under the influence of marijuana. How long does a person stay high after they consume medical marijuana and how does an employer judge that? There is no effective test to determine whether a person is “under the influence” of marijuana as there is with alcohol (i.e. a breathalyzer) and the Amendment is silent on the topic. Missouri employers are left to use judgment here to read signs of intoxication which could put employers at further risk for discrimination lawsuits. Therefore, while the Amendment allows for termination if an employee is found under the influence of medical marijuana at work, Missouri employers should proceed with caution and train personnel to exercise sound judgment in determining such matters.
Amendment 2 lends itself to several other basic questions for Missouri employers. For instance, what accommodations does an employer have to make to employees with a prescription for marijuana? It is unclear under the Amendment. How does an employer dependent on federal funding comply with federal regulations regarding employer drug screening while adhering to the new employee rights under Missouri law? There is a little more clarity here, but still Missouri employers will face a relatively unpredictable landscape when considering federal funding in the face of a new state law. Missouri employers are left in the awkward position of attempting to avoid litigation pitfalls while respecting the rights of their employees and maintaining a functioning business. Amendment 2 issues will undoubtedly make their way to Missouri courts in the next year as employers and employees search for their equilibrium in this new endeavor. As medical marijuana becomes a reality in 2020, Missouri employers should prepare by adjusting their handbooks and procedures to deal with the inevitable issues that will arise and consider training for human resources personnel who will have confront this new law.
 A pertinent example is New Jersey. Please see MK&C’s post on the interaction of discrimination law and medicinal marijuana in New Jersey, here. It should be noted that following publication of that article, the New Jersey Supreme Court agreed to take up the case. As such, the issue remains a potentially open one in the Garden State.