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 »

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 »

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 »

Eviction/Foreclosure Moratorium Changes and the Consumer Financial Protection Bureau’s Final Rule on Foreclosure

Brian Weinstock

By Brian Weinstock



eviction moratoriumOn June 24, 2021, the Centers for Disease Control (CDC) extended its eviction moratorium order which was set to expire on June 30, 2021.  According to CDC Director Dr. Rochelle Walensky, the eviction moratorium will now expire July 31, 2021 and is intended to be the final extension.

Just a few days later, the U.S. Supreme Court denied a request by a group of landlords to allow a federal judge’s decision to block the eviction moratorium to go into effect nationwide while litigation disputes continued to vacate a stay order from Federal Judge Dabney Friedrich that declared the CDC moratorium unlawful (see “Federal Judge Dabney Friedrich Vacates CDC Nationwide Eviction Moratorium”). Washington-based U.S. District Court Judge Dabney Friedrich ruled in favor of the landlords in May 2021 but put her ruling on hold pending the government’s appeal in the case. The landlords appealed to the Supreme Court after a lower appellate court rejected their request to unfreeze Judge Friedrich’s ruling. The landlord groups, led by the Alabama Association of Realtors, sued to challenge the moratorium, arguing that the CDC exceeded its authority under a federal law called the Public Health Service Act. They wrote in court papers: “Congress never gave the CDC the staggering amount of power it now claims.”  The groups said an eviction ban is no longer needed for public health reasons in light of declining COVID-19 cases and deaths. They also cited the CDC’s May 13, 2021 announcement that vaccinated people no longer need to wear masks or practice social distancing indoors. Continue reading »

Mandatory COVID-19 Vaccines in the Workplace Update: Ruth Binger Interview

Ruth Binger

By Ruth Binger



covid vaccineRuth Binger spoke with KMOV Channel4 News about a possible increase in companies requiring the COVID-19 vaccination for their employees.

According to Ruth, the fact that the vaccination does not yet have FDA approval is keeping many companies from considering a mandatory vaccination policy at this time. To date, none of her clients have a mandatory policy in place. “I do think it’s changing a little bit because of the Delta variant, and now [companies are] thinking about whether or not they should have a mandatory policy.”

Ruth said that another concern employers about enforcing a mandatory COVID-19 policy is the national worker shortage. Continue reading »

Mergers and Acquisition Activity: A Post Pandemic Surge?

Michael J. McKitrick

By Michael J. McKitrick



mergers and acquisitionsMany post-pandemic signals indicate that Merger and Acquisition (M&A) activity has increased and is expected to continue to increase. Listings for sales of existing businesses surged in 2021, according to Rob Schmitt, a business broker at the St. Louis Group. Reasons for this increase include:  (1) post-pandemic stability; (2) low interest rates; (3) low capital gain rates; (4) access to government benefits like the PPP program; (4), retiring baby boomers; (5) robust stock values; and (6) the presence of capital on the sidelines waiting to be put to use.

Conditions are favorable for willing sellers and buyers in the M&A arena. Some businesses, including retail and hospitality, have not yet recovered from the pandemic. While some may not consider these to be good subjects for M&A activity, their valuations are low and may present attractive opportunities. There are also sellers who have experienced both the 2008-2009 financial crisis and COVID-19 and have decided that they will not wait any longer to exit. On the other hand, many companies look to expand operations in this favorable environment.

The process typically begins by contacting a M&A specialist, investment banker, business broker or similar advisor to determine how to position your business for sale, or, if you are a buyer, what acquisition candidates exist. After the initial match, Continue reading »

COVID-19 Paid Sick and Family Leave Tax Credits Now Available

Jessica A. Gottsacker

By Jessica A. Gottsacker



covid tax creditThe American Rescue Plan of 2021 (ARP) is now providing a tax credit for paid sick or family leave related to COVID-19 and the COVID-19 vaccinations. Employers can claim tax credits for the wages paid to employees for paid leave due to issues arising from COVID-19, including leave taken to receive or recover from COVID-19 vaccinations, from April 1-September 30, 2021.

To be eligible, your business must have fewer than 500 employees. Tax-exempt organizations qualify as well as governmental employers, other than the federal government and any agency or instrumentality of the federal government that is not an organization described in section 501(c)(1) of the Internal Revenue Code. Additionally, self-employed individuals are entitled to similar tax credits.

Under ARP, employers may claim tax credits to cover the following: Continue reading »

High Burden of Proof Established for COVID-19 Exposure, Medical, and Products Liability Actions

Katherine M. Flett

By Katherine M. Flett



covid19The Missouri House voted to pass Missouri Senate Bill 51, which establishes provisions related to COVID-19 exposure liability actions, COVID-19 medical liability actions, and COVID-19 products liability actions, in the final minutes of the 2021 legislative session.  It was signed by Governor Parsons on July 7, 2021.  The new law will become effective on August 28, 2021, and expire on August 28, 2025.

COVID-19 Exposure Liability

Under Senate Bill 51, no business, service, activity, or accommodation will be liable in any COVID-19 exposure action, unless it is proven by “clear and convincing evidence” that “recklessness or willful misconduct” caused an actual exposure to COVID-19 resulting in personal injury.

  • “Recklessness” is defined as “a conscious, voluntary act or omission in reckless disregard of a legal duty and the consequences to another party.”
  • “Willful misconduct” is defined as “an act or omission that is taken intentionally to achieve a wrongful purpose or in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.”

While we do not know how broadly the courts will interpret these terms, taking actions to prevent the spread of COVID-19, such as requiring mask-wearing, hand sanitizing, and social distancing, could all be helpful in defending a COVID-19 exposure case.  As for vaccinations, the law clearly states, that businesses are not required to establish a policy that requires or mandates vaccination or proof of vaccination to avoid COVID-19 exposure liability.

The new law allows for the presumption that an individual assumes personal risk when the business clearly posts the following message near its entrance: Continue reading »

Illinois Enacts New Restrictions for Considering Criminal History in Employment Decisions and Equal Pay Requirements

Katherine M. Flett

By Katherine M. Flett



employmentEmployment law changes regarding human rights and equal pay have arrived in Illinois.  On March 23, 2021, Governor J.B. Pritzker signed into law S.B. 1480, which makes significant amendments to both the Illinois Human Rights Act (IHRA) and the Illinois Equal Pay Act (IEPA), effective immediately.

Criminal Conviction Record and Employment

S.B. 1480 amends the IHRA with more limitations on how an employer may use an employee’s or applicant’s criminal conviction record when making employment decisions. It is now a civil rights violation for any employer to use a criminal conviction record as a basis to refuse to hire, terminate, or take any other adverse employment action against the applicant or employee with two exceptions:

  1. There is a “substantial relationship” between one or more of the previous criminal offenses and the employment sought or held; or
  2. By granting or continuing employment, an “unreasonable risk” would exist “to property or to the safety or welfare of specific individuals or the general public.”[1]

To determine whether a substantial relationship exists, an employer should consider whether the employment position “offers an opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.”[2]

The new law also requires an employer to consider the following relevant factors when making this determination: Continue reading »