Missouri’s New Marijuana Amendment: Workplace Testing and Employees “Under the Influence”

Missouri’s newly approved constitutional Amendment 3 regarding marijuana use will go into effect on December 8, 2022.  With a total of 49 pages, the Amendment 3 has two sections: revised Section 1 (former Amendment 2), which focuses on medicinal use, and Section 2, which focuses on marijuana recreational use.

Employers have long had Drug-Free Workplace policies that test employees for various illegal drugs.  Common tests are pre-employment, random, reasonable suspicion, and fitness for duty/return to work/follow up after rehab or last chance.

The original Amendment 2 regarding medicinal use was passed in 2018.  Employers responded to this amendment in several ways including choosing to keep their policies the same but providing reasonable accommodation under the disability statutes or to simply quit testing for THC altogether except for reasonable suspicion.

Now, employers will have to go back to the drawing board.

Section 1: Medicinal Use of Marijuana

Section 1 of Amendment 3 revises the original Amendment 2 in its entirety. One of the revisions/additions includes adding a nondiscrimination in employment section. It prohibits employers from discriminating against “medicinal cardholders” based on off-duty use unless the person was “under the influence of medical marijuana” at or during work. Further, it specifically prevents employers from relying solely on a positive THC test result to terminate a medicinal cardholder unless the person used, possessed, or was “under the influence” of medical marijuana at or during work.

There are exceptions to the “under the influence test” for medicinal cards for the following situations:

1. If the employer would lose a monetary or licensing related benefit under federal law,
2. If the employee has a job where “legal use of a lawful marijuana product affects in any manner a person’s ability to perform job-related employment responsibilities, or
3. If it conflicts with a bona fide occupational qualification that is reasonably related to a person’s employment.

This exception protection does not appear to apply to “recreational” users who do not have a “medicinal card.”

There is no readily available test to scientifically confirm whether someone is “under the influence of marijuana” nor what the threshold of impairment is under BAC for alcohol. How long a person will test for marijuana depends on a multitude of factors but is not limited to:

1. How frequently the person consumes marijuana,
2. How much marijuana the person consumes,
3. The person’s amount of body fat (THC is stored in fat cells), and
4. The type (hair, blood, urine, saliva, breath) and sensitivity of the drug test.

Studies show that THC can stay in a person’s system 25 days or more from the last date of consumption.

With the new amendment, employer strategies have to change with respect to medicinal use. Approaches will vary based on the nature of the workforce, type of job duties, and risk tolerance for both safety concerns and employment discrimination claims. Caselaw will need development as to whether Amendment 3 overrides the following:

• The workers’ compensation deduction for a drug policy violation if backed up only by a lab-confirmed positive test per Section 287.120.6 RSMO.
• The language in Missouri’s unemployment benefits law at Section 288.045 RSMO, which considers a positive drug test “misconduct” and therefore denies unemployment insurance to an applicant.

Section 2:  Recreational Use of Marijuana

Regarding employees “under the influence” in the workplace due to recreational use, pursuant to Section 2.3(1)(3):

“This section does not require an employer to permit or accommodate conduct otherwise allowed by this section in any workplace or on the employer’s property. This section does not prohibit an employer from disciplining an employee for working while under the influence of marijuana. This section does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because that person was working while under the influence of marijuana.”

Problems Regarding Workplace Testing for Being “Under the Influence”

How does the employer prove an employee is “under the influence of marijuana?”

• For medicinal users, employers cannot only use a THC test.
• Employers can use only a THC test for recreational users but it does not test impairment at the moment of the test.
• In both instances, employers should incorporate a physical and behavioral test to back up any THC test. New Jersey Cannabis Regulatory Commission created a Reasonable Suspicion Observation Report to establish proof of physical and behavioral signs of intoxication.

Employers could consider continue testing for THC at pre-employment stage or under a random testing program that gives accommodations to medical marijuana cardholders.

Employers could also quit testing for THC entirely and only test if there is reasonable suspicion to suspect impairment.

Employers should also consider switching to using a drug test that meets a heightened standard, such as testing of blood, urine, or saliva.  These tests have a shorter window of detection than other types of tests. Employers may also consider using cognitive impairment tests which are scientifically valid and consistently repeatable to test an employee’s impairment or an ocular scan.

Under Amendment 3, employers need to ask themselves how much litigation risk they are willing to take and what their risk tolerance is for safety concerns associated with drug use by employees, including recreational use or medicinal use of marijuana.

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.

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