Medical Marijuana Use by Employees in Missouri: Where Are We Now?

Ruth Binger

By Ruth Binger



medical marijuanaDue to the pandemic and labor shortage, Missouri courts have not had an opportunity to consider Amendment 2 and employment issues related to medical marijuana in the workplace. Amendment 2 allows state licensed physicians to recommend medical marijuana to patient employees diagnosed with chronic debilitating conditions. It also protects employees with a medical marijuana card issued by the Department of Health and Senior Services (DHSS) from being terminated unless the employer proves that the employee is “under the influence of marijuana.”

There are no reliable tests available yet to scientifically confirm if someone is “under the influence” of marijuana. A person will test positive for marijuana for up to 25 days after use. However, there are impairment tests on the market that can help determine whether workers in safety-sensitive positions are at risk by testing current fitness for duty.  Those tests include computer-based alertness tests similar to a video game and apps that test for cognitive and motor impairment. Some tests take 20 seconds and are advertised as testing for fatigue, dehydration, emotional distress, alcohol, cannabis, etc.

Without more guidance, employers will have to create Observed Behavior tests that are signed by company personnel to bolster an argument of “under the influence.” Further, because Amendment 2 is a constitutional amendment, it would necessarily trump existing Missouri law found in laws such as workers’ compensation and unemployment statutes.

Another possible employee defense is an Americans with Disabilities Act (ADA) defense where the employee is taking physician-prescribed medical marijuana for a chronic debilitating condition that is protected by the disability laws. Missouri has no case law at this time. U.S. case law trends are that when courts are asked to apply federal law (the ADA) versus state law (i.e., Missouri Human Rights Act), federal courts are not finding a protected disability due to the employee using an illegal drug.

The ADA does not protect employees engaging in the “illegal use of drugs.” That term is defined, in part, as uses authorized by the Controlled Substance Act under which marijuana is classified as a Class 1 drug (similar to heroin) with no “currently accepted medical use in treatment in the United States.” Normally, employees with protected conditions must be accommodated by the employer if at all possible. (Some jobs cannot be accommodated, such as driving, DOT, first responder, operating heavy machinery, etc.) However, in these federal cases, there is no duty to accommodate for such use, even if prescribed. This could all change if the law changes to deschedule cannabis as a Class 1 drug.  Then the federal and state courts’ current stance of handling medical marijuana cases under the ADA would change.

In the interim, with no guidance, if employers wish to test for marijuana and an employee fails the test but produces a DHSS medical marijuana card, the prudent strategy is to assume that the disabilities law protects the disabled employee and act accordingly.  No company wants to be the test case.

This is a tricky area which will continue to see a great deal of change.

Posted by Attorney Ruth Binger. Binger serves both emerging and mature businesses concentrating in corporate law, intellectual property and technology law, cybersecurity, digital media law, and labor and employment law. Her commitment to the success of small to medium-sized businesses, and her understanding of multi-faceted issues inherent in operations, are what distinguish Binger’s practice.

(c) daveh900 www.fotosearch.com

Changes Coming to Illinois Non-Compete and Non-Solicit Law

Katherine M. Flett

By Katherine M. Flett



Authored by Katherine M. Flett with assistance from Haley E. Gassel, law clerk

noncompeteOn August 13, 2021, Governor JB Pritzker signed SB 672 into law, amending the Illinois Freedom to Work Act, the state’s restrictive covenant statute. Going into effect on January 1, 2022, the new bill will only apply to restrictive covenants entered into on or after January 1, 2022.

Compensation Thresholds

In SB 672, the Illinois legislature reserved non-compete and non-solicit agreements for higher paid employees. The law prohibits employers from imposing non-compete agreements on employees earning less than $75,000 annually or non-solicitation agreements on employees earning less than $45,000 annually. Earnings are defined broadly to include compensation, salary, bonus, commission, or any other form of taxable compensation on the employee’s W-2 plus any elective deferrals. These salary thresholds will increase over time, beginning in 2027.

Other Prohibitions

SB 672 includes a special provision for employees furloughed or laid off “as the result of business circumstances or governmental orders related to the COVID-19 pandemic” or under similar circumstances. A non-competition or non-solicitation agreement may not be entered into under these circumstances unless enforcement of the agreement provides for “compensation equivalent to the employee’s base salary at the time of termination for the period of enforcement minus compensation earned through subsequent employment during the period of enforcement.”

Non-competition and non-solicitation agreements are illegal for non-managerial or non-administrative employees in construction or employees covered by collective bargaining agreements under the Illinois Public Labor Relations Act or the Illinois Educational Labor Relations Act.

Employees’ Rights

If an employee is not advised by the employer in writing to consult with an attorney before entering into a non-competition and non-solicitation agreement, the agreement is invalid. Likewise, if an employee does not receive a copy of a non-competition and non-solicitation agreement before starting employment or with at least 14 days to review the covenant, the agreement is invalid. The employee may sign the agreement before the 14-day period has ended.

An employee that successfully defends against an employer’s enforcement of a non-competition or non-solicitation agreement not to solicit shall recover from the employer all costs and reasonable attorney’s fees, along with any other appropriate relief.

Requirements for a Restrictive Covenant to be Valid

Continue reading »

Modifications of Telehealth and Interstate License Compacts Due to COVID-19

Brian Weinstock

By Brian Weinstock



telemedicineIn response to the COVID-19 pandemic, many states have modified licensure requirements and renewal policies for medical providers to respond to the pandemic, including out-of-state license requirements for telemedicine.

Nationwide, the U.S. Department of Health & Human Services (HHS) is authorized to make declarations during certain emergencies regarding immunity from liability under the 2005 Public Readiness and Emergency Preparedness Act (PREP Act). In 2020 and 2021, HHS added several amendments to the PREP Act including countermeasures for treatment and prevention of COVID-19, interstate telehealth expansion related to COVID-19, and liability protection for medical providers of COVID-19 related services and products.

Covered Persons

Under the PREP Act, covered persons include “manufacturers, distributors, program planners, and qualified persons, and their officials, agents, and employees, and the United States.” To increase access to vaccines, Amendments 5 through 8 expand the categories of covered persons who  may “prescribe, dispense, and administer COVID-19 vaccines” to include: Continue reading »

Essential Points to Follow When Entering Into or Renewing Your Lease

Michael J. McKitrick

By Michael J. McKitrick



leaseIn spite of the uncertainties caused by the pandemic, your lease remains critical to your business. Commercial leases are complex transactions and should be undertaken with great care.

Following these basic points will make the lease renewal or new lease go smoothly. Continue reading »

Does Business Interruption Insurance Cover COVID-19 Losses?

Jeffrey R. Schmitt

By Jeffrey R. Schmitt



Authored by Jeffrey R. Schmitt, with assistance from Haley E. Gassel, law clerk

business interruptionBusiness interruption coverage is like most insurance for small businesses – we pay for it with the hope we never need it. The coverage is intended to protect against revenue lost after a business experiences a covered peril or event which results in a temporary closure. Often this involves a casualty event like a fire or flood, or the inability to operate due to loss of utilities or information systems.

However, businesses across the country have filed claims with their insurers seeking business interruption coverage for COVID-related losses.  This is a theory that, fortunately, most businesses have never had to claim in the past. Some claims have found their way to the courts for determination. The issue often boils down to whether there is physical loss or damage to the policyholder’s business location to trigger business interruption coverage. Some policies include coverage for communicable diseases as well.

While most business interruption coverage lawsuits have not concluded, some recent decisions by federal courts in Missouri have been favorable for businesses seeking coverage. This is due in part to ambiguities in the policies and the lack of prior court decisions involving business interruption claims based on a pandemic. In many ways, these are uncharted waters for the litigants and the courts. Continue reading »

Small Business Owners: Misconceptions About Estate Planning

Rachel A. Quinley

By Rachel A. Quinley



estate planningIn “Estate Planning Misconceptions of Small Business Owners” on our estate planning blog, I recently discussed the most common misconceptions that small business owners have about estate planning.

These misconceptions involve: wills; trusts and trust funding; asset distribution to heirs and beneficiaries; protection for yourself and your assets while you are living and after your death; probate; and succession planning for your business.

Read the full article here: Estate Planning Misconceptions of Small Business Owners.

If you have any questions regarding estate planning as a small business owner, contact me or one of our other estate planning attorneys at 314.726.1000.

Posted by Attorney Rachel A. Quinley. Quinley is an estate planning and probate attorney who focuses her practice on the creation and administration of trusts and estates, wills, beneficiary deeds, financial and medical powers of attorney, guardianships, and other matters related to estate planning. 

Is a Two-Year Statute of Limitations on Personal Injury Claims Coming Soon to Missouri?

Steven A. Ahillen

By Steven A. Ahillen



Authored by Steven A. Ahillen with assistance from Haley E. Gassel, law clerk

A change in the statute of limitations on actions for personal injury is working its way through the Missouri Senate. Senate Bill 3 (SB 3), introduced by Senator Dan Hegeman, was approved by the Senate Judiciary Committee and is waiting full consideration of the Senate. SB 3 states that any personal injury actions have a statute of limitation of two years from the time of injury.

The current law in Missouri says that actions for personal injury must be brought within five years of the injury occurring. If passed,  the change in the statute of limitations applies only to causes of action for personal injury that accrue on or after August 28, 2021. Continue reading »

Potential Changes to the Collateral Source Rule in Missouri

Katherine M. Flett

By Katherine M. Flett



Authored by Katherine M. Flett with assistance from Haley E. Gassel, law clerk

personal injuryThe Missouri House is considering a bill that would modify the determination of when evidence of collateral source payments in civil actions is admissible. Sponsored by Representative Alex Riley, Missouri House Bill 577 (HB 577) seeks to amend the Missouri Collateral Source Rule 9 (Section 490.715, RSMo.) and clarifies that the rule applies only to parties named in the plaintiff’s case. Approved by the House Committee and placed back on the formal perfection calendar in May, the bill is waiting to be placed on the House Formal Calendar for floor debate.

Proposed Changes to the Missouri Collateral Source Rule

HB 577 states that “in any action wherein a plaintiff seeks to recover for personal injury, bodily injury, or death, any party may introduce evidence of the actual cost of the medical care or treatment rendered to a plaintiff, or to the person for whose injury or death plaintiff seeks to recover.” It goes on to explain that “actual cost of the medical care or treatment shall be reasonable, necessary, and a proximate result of the negligence or fault of any party.”

The exception to this rule is Subsection 2. Under the bill, any part or all of a plaintiff’s special damages paid for by the defendant, the insurer, and/or authorized representative, (or any combination of these) are not recoverable from the defendant in the plaintiff’s claims for special damages.

Another change to the rule involves which amounts billed can be submitted as evidence. Evidence of any amount billed for medical care or treatment that has been “discounted, written off, or satisfied by payment of an amount less than the amount billed” may be not be admitted. However, the actual cost of medical care or treatment provided and any contracted discounts, price reductions or write offs may be admitted as “evidence relevant to the potential cost of future treatment.”

Potential Effects of Changes to the Missouri Collateral Source Rule Continue reading »

Revisions to Punitive Damages in Missouri

Lauren L. Wood

By Lauren L. Wood



Authored by Lauren L. Wood with assistance from Haley E. Gassel, law clerk

personal injuryChanges have been made to punitive damages claims in civil actions filed in Missouri on or after August 28, 2020.

Under the revisions, Missouri Revised Statute Section 510.261 now prohibits parties from making a claim for punitive damages in their initial pleading in a civil action. Any claimant who wishes to add a punitive damages claim to a civil action must file a written motion to amend 120 days prior to the pretrial conference, or, if no conference is scheduled, 120 days prior to trial, seeking leave to bring a claim for punitive damages. The claimant seeking leave must provide exhibits, affidavits, and discovery materials establishing a reasonable basis for the recovery of punitive damages. Any party opposing leave may submit admissible evidence to demonstrate that the standards for a punitive damage award have not been met. The court may grant leave to add the punitive damages claim if it determines that a judge or jury could reasonably conclude, based on clear and convincing evidence, that the standards for a punitive damage award have been met. This statute has the effect of preventing meritless claims being made in litigation as well as saving both the time and money of the parties involved.

Substantive Changes and Clarifications

After clearing the hurdle of obtaining leave to bring a punitive damages claim, a claimant must satisfy the statute’s requirements to receive an award of punitive damages. To do so, RSMo  510.261(1) requires the claimant to prove by clear and convincing evidence that the defendant “intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others.” The revised statute does three things:

  1. Codifies the original common law regarding punitive damages. In Klingman v. Holmes, 54 Mo. 304, 308 (1873), the first Missouri Supreme Court case allowing an award of punitive damages, the Court held that exemplary damages are only appropriate where an evil intent has manifested itself in acts. The court reasoned that under common law there must have been intent, or positive proof of malice, to justify granting punitive damages.
  2. Clarifies the requisite mental state of the defendant, to intentionally harm without cause or with a deliberate and flagrant disregard for the safety of others. This gives the judge or fact finder a clear standard for determining whether the claimant is entitled to punitive damages.
  3. Codifies the “clear and convincing” burden of proof standard. The Missouri Supreme Court has previously adopted this standard, but it had yet to be codified.[1],[2] The clear and convincing burden of proof standard falls within the middle ground of the ordinary civil burden of proof standard, preponderance of the evidence, and the criminal law standard, beyond a reasonable doubt.

Nominal Damages Continue reading »

Missouri Joined the Rest of the Country in Enacting “Wayfair Tax”

Katherine M. Flett

By Katherine M. Flett



taxesMissouri joined the rest of the country in enacting a sales tax on online purchases, commonly known as a “Wayfair tax,” when Governor Parsons signed Senate Bill 153 into law. The governor identified the Wayfair tax as a priority in his 2021 State of the State Address. The Wayfair tax will begin in Missouri on January 1, 2023.

Previously, Missouri businesses who made online sales to Missouri customers were required to charge sales and use tax, while companies without a physical presence in Missouri who made online sales to Missouri customers were not.  The new law allows Missouri to impose a sales tax on online purchases made through vendors such as Etsy, eBay, and Wayfair, that are delivered to the state.

The Wayfair tax is intended to even out the playing field for local businesses to compete with online companies. It is also expected to raise up to $41 million for public schools, $5 million for the Missouri Department of Conservation, and $4.5 million for state parks and soil conservation. Continue reading »