On November 6, 2018, Missouri voters approved Amendment 2 which legalized the use of medical marijuana within the state. The amendment adds an article to the Missouri Constitution allowing patients that have a qualifying medical condition to obtain a prescription for marijuana. In so doing, Missouri joins more than 30 other states in legalizing medical marijuana but also enters into a field of great legal uncertainty. While medical marijuana may now be legal at the Missouri state level, it remains illegal within the purview of the Federal Government which continues to adhere to the federal Controlled Substances Act. Missouri employers are caught between competing laws.
This legal quandary is perhaps most pronounced in the area of employment where questions of drug testing, safety, and reasonable accommodations arise. Amendment 2 and existing federal law can help to answer some of the questions that employers face while other questions must be left for Missouri courts to determine.
Who is qualified to obtain a medical marijuana prescription?
Only a “Qualified Patient,” as defined in Section 1.1(15) of Amendment 2, may obtain a prescription for medical marijuana. The patient is considered qualified if a doctor certifies that they are suffering from a pre-approved medical condition found within the Amendment. The list includes cancer, epilepsy, glaucoma, intractable migraines, debilitating psychiatric disorders (including PTSD), HIV/AIDS, any terminal illness, and also provides a catch-all provision that leaves the determination of whether a qualifying medical condition exists to the individuals treating doctor. Virtually every condition listed in the text of the amendment would qualify as a disability under the Americans with Disabilities Act or the Missouri Human Rights Act.
Does an employer still have the right to drug test employees?
Yes. There is nothing in Amendment 2 that prohibits the testing of employees for drugs including the testing of employees for marijuana.
Can employees use marijuana while at work?
No. Section 1.7(7) of the Amendment expressly prohibits the use or consumption of medical marijuana in any public place.
Can an employer discipline or terminate an employee that is under the influence of medical marijuana at work?
Yes, however, there are some serious concerns for which it is important to be mindful. At first glance, Amendment 2 appears to lay a clear safety net for employers. Section 1.7(1)(d) provides that Missouri employers are expressly protected from claims of discrimination or wrongful discharge brought by employees as a result of the individual being disciplined or terminated for being “under the influence” of marijuana while at work or while attempting to work.
However, employers may still face claims of discrimination. While Amendment 2 has attempted to protect Missouri employers from discrimination claims in the workplace, the Amendment does not define the term “under the influence,” instead, choosing to leave the term ambiguous. There is no guidance or delineation to determine at what point an individual technically falls under the influence of marijuana and how long a person stays under the influence after consuming.
Additionally, the amendment does not provide a means for an employer to determine that an employee is presently under the influence. This is especially tricky area because marijuana testing, unlike the use of a breathalyzer for determining present blood alcohol content, may be ineffective at determining whether an employee is currently “under the influence” of marijuana or if the employee consumed marijuana at some point in the past few days or weeks.
As a result of the ambiguity of the terms in the Amendment and the ineffectiveness of marijuana testing to give a precise measurement of an employee’s current level of intoxication, employers must depend on their subjective ability to spot and identify any signs of their employees being under the influence on the job. The signs that employers can look for might be red and watery eyes, the smell of marijuana emanating from the employee, and the appearance of being disoriented or lethargic. However, without proper training and guidelines, noticing these signs may be a challenge for many employers as the signs can be subtle or misinterpreted. Additionally, many signs of marijuana impairment such as being disoriented or lethargic, may also be attributed to illnesses protected under the Americans with Disabilities Act (ADA). Singling out employees that exhibit signs associated with their protected illness for additional testing could expose the employer to a claim of discrimination under the ADA.
Ultimately, as the law currently stands, if it has been determined that an employee is under the influence of marijuana while at work or while attempting to work, that employee can be disciplined or terminated.
Can an employer fire an employee that tests positive for marijuana but has a prescription?
As of now, yes, however, similar to the answer above, the issue is complex, the amendment is ambiguous, and courts will likely need to step in to provide guidance. One area to keep an eye on is Missouri’s anti-discrimination statute (Section 290.145) that prohibits employers from firing, disciplining, or refusing to hire an individual because the individual lawfully partakes of alcohol or tobacco products while off the clock and off the employer’s premise if the use does not interfere with the employee’s performance or duties. While the statute does not list marijuana as a protected substance, lawsuits in other states with similar anti-discrimination laws for alcohol and tobacco have successfully argued that marijuana should be included in the list alongside alcohol and tobacco as marijuana use would be “lawful”. It is likely that the statute will also be raised in Missouri to challenge discrimination against medical marijuana.
Unfortunately, turning to other states for guidance in this matter proves to be ineffective as they have proven to be split on the issue. While many states, including California and Colorado, support an employer’s right to terminate employees for their use of medical marijuana by citing federal law that prevents employees from claiming their use of marijuana is lawful, recent lawsuits in Massachusetts, Connecticut, and Rhode Island have found in favor of employees who were terminated for testing positive for medical marijuana use. It is almost certain that medical marijuana will lead to employment discrimination challenges in Missouri’s courts.
At this point, there is no explicit prohibition in the law against employers firing an employee who tests positive for marijuana, even if they have a prescription.
Must employers extend reasonable accommodations to employees that have a prescription for marijuana?
Unfortunately, the answer to this question is uncertain as states are split on whether reasonable accommodations should be given once an employer has notice that medical marijuana has been prescribed to an employee. The issue will more than likely be decided in Missouri state court. It is important to note, while Amendment 2 covers disabilities also covered by the ADA, the ADA does not require employers to accommodate the use of illegal drugs or misuse of prescription drugs. Since marijuana is still considered an illegal drug at the federal level, employers need not worry about a federal discrimination claim for refusing to accommodate marijuana use of tis employees.
However, in order to avoid potential state litigation, employers should consider responding to an employee’s positive test result by engaging with the employee as they would with any disability request in an effort to determine if reasonable accommodations can be met. The employee’s responsibilities and duties and any safety concerns should be factored into an employer’s decision-making. If an individual, for any reason, fails to demonstrate their condition allows them to perform the essential functions of their job, employers have the right to remove employees either temporarily or permanently.
Amendment 2 anticipated these safety concerns and pays particular attention to employees whose responsibility it is to operate machinery or dangerous devices. Section 1.7(1)(b) and (c) of Amendment 2 state that, “nothing in [the law] permits a person to b) undertake any task under the influence of marijuana when doing so would constitute negligence or professional malpractice or c) to operate, navigate, or be in actual physical control of any dangerous device or motor vehicle, aircraft or motorboat while under the influence of marijuana.” Additionally, employers need to keep in mind that the Occupational Safety and Health Act (OSHA), requires employers to provide a safe work place for all its employees. If the worker is in a safety-sensitive position, marijuana use is likely not a reasonable option.
Ultimately, if marijuana use prohibits an employee from fulfilling their job or threatens the safety of themselves or others, the Amendment does not provide protection for the employee and current Missouri law does not mandate that medical marijuana be accommodated.
Does the new amendment change drug testing for Commercial Drivers License?
No. Drug testing for CDL employees is governed by the Department of Transportation (DOT), a federal agency. As such, the DOT adheres solely to the federal Controlled Substances Act which maintains that marijuana is an illegal substance regardless of whether the employee has a prescription or not. CDL holders that test positive for marijuana, even with a prescription, may lose their CDL. Nothing regarding CDL drug testing or qualifications changes as a result of Amendment 2.
How might Workers’ Compensation be affected by medical marijuana?
Currently, the Missouri Workers’ Compensation Act provides for the reduction of workers’ compensation benefits as a result of an employee’s use of alcohol and non-prescribed controlled drugs (Section 287.120.6). Up until this point, marijuana use would lead to a reduction or even forfeiture of benefits. While Amendment 2 does not address workers’ compensation directly, because it requires a medical certification and prescription for individuals to obtain medical marijuana, there is a possibility that Section 287.120.6 will not apply to reduce employees’ benefits as a result of their medical marijuana use if such use is pursuant to a prescription.
How does the new law affect employers that receive federal funding?
Businesses that receive federal funding or grants must maintain a drug-free environment through the implementation of a drug-free workplace policy in accordance with the Drug-Free Workplace Act of 1988. This act prohibits employees from manufacturing, distributing, dispensing, or having possession of any prohibited controlled substances. The Drug-Free Workplace Act adheres to the federal Controlled Substances Act and considers marijuana to be a prohibited controlled substance.
The issue of the federal funding requirements of maintaining a drug-free workplace as a reason to fire an employee was brought up in a recent case in Connecticut where a federal court concluded that a federal contractor could not fire an employee that tested positive for marijuana who had a prescription. The employer argued that as a government contractor, it was required to comply with the federal Drug-Free Workplace Act which makes it unlawful for an employer to allow employees to use illegal drugs. The court however, disagreed, holding that the Drug-Free Workplace Act neither requires drug testing nor regulates an employee’s off-duty cannabis use, “much less an employee who uses medical marijuana outside the workplace in accordance with a program approved by state law.” It is important to note that this decision is from one federal district court analyzing the medical marijuana law in Connecticut. It is not binding on other courts. However, it serves as a reminder that employers cannot rely on federal law alone to protect them from discrimination claims.
It is important to be mindful that accommodating the use of medical marijuana or changing drug and alcohol policies to reflect the new state law, may impact a business’ standing under the Drug-Free Workplace Act and could threaten federal funding or grants.