Article written July1, 2023

Missouri Amendment 3 took effect on December 8, 2022. Amendment 3 legalized recreational marijuana and made certain changes to Missouri’s medical marijuana laws. While legal in Missouri, marijuana is still illegal under the federal Controlled Substances Act.

Although recreational marijuana is no longer illegal in Missouri, it can still be prohibited by Missouri employers. However, Amendment 3 creates new protections for medical marijuana users with a valid medical marijuana patient ID card. Amendment 3 specifies that employers are now prohibited from discriminating against or taking an adverse employment action (demoting, reducing pay, suspending, etc.) against an employee who has a valid medical marijuana patient ID card for: 1) the off-site use of medical marijuana during non-working hours; or 2) testing positive for marijuana in an employer administered drug test.

Nothing in Amendment 3 permits a person to: “Bring a claim against any employer, former employer, or prospective employer for wrongful discharge, discrimination, or any similar cause of action or remedy, based on the employer, former employer, or prospective employer prohibiting the employee, former employee, or prospective employee from being under the influence of marijuana while at work or disciplining the employee or former employee, up to and including termination from employment, for working or attempting to work while under the influence of marijuana.” Accordingly, no claim for disability discrimination exists for disciplining or terminating an employee for being under the influence of marijuana while at work.

In regard to discrimination, Amendment 3 further states:

(15) Unless a failure to do so would cause an employer to lose a monetary or licensing-related benefit under federal law, an employer may not discriminate against a person in hiring, termination or any term or condition of employment or otherwise penalize a person, if the discrimination is based upon either of the following:

(a) The person's status as a qualifying patient or primary caregiver who has a valid identification card, including the person’s legal use of a lawful marijuana product off the employer’s premises during nonworking hours, unless the person was under the influence of medical marijuana on the premises of the place of employment or during the hours of employment; or

(b) A positive drug test for marijuana components or metabolites of a person who has a valid qualifying patient identification card, unless the person used, possessed, or was under the influence of medical marijuana on the premises of the place of employment or during the hours of employment.

Nothing in this subdivision shall apply to an employee in a position in which legal use of a lawful marijuana product affects in any manner a person’s ability to perform job-related employment responsibilities or the safety of others, or conflicts with a bona fide occupational qualification that is reasonably related to the person's employment.

Based on the sections above, employers cannot make employment related decisions and/or discriminate against an employee based upon: Their status as a qualifying patient or primary caregiver who has a valid medical marijuana ID card; the employee’s off-site legal use of marijuana during non-working hours; or for a positive drug test if the employee has a valid qualifying patient ID card. However, the drug testing protection in Amendment 3 does not apply if the employee used, possessed, or was under the influence of marijuana on the employer’s premises during working hours.

In addition, Amendment 3 has exceptions for certain employers if following the rules (stated above) would cause them to lose a monetary or licensing-related benefit under federal law (i.e., Department of Transportation regulations). Also, the employee protections do not apply to employment positions in which the legal use of marijuana affects the person’s ability to perform job-related employment responsibilities or the safety of others, or conflicts with a bona fide occupational qualification that is reasonably related to the person’s employment.

Finally, Missouri Amendment 3 prohibits employers from making employment-related decisions based upon a positive drug test for qualifying employees if their positive test was due to lawful consumption of medical marijuana off the employer’s premises and not during working hours. Consequently, drug testing for employees may not be a basis to deny employment or take adverse employment actions against a prospective or current employee, unless the employer or job position meets one of the exemptions listed above.

All in all, employers are not required to permit or reasonably accommodate the possession, sale, or consumption of marijuana in the workplace for medical marijuana patients.

It will be very important to continue to train your managers and supervisors to spot the signs of marijuana impairment at work; just like they have been trained to identify the signs of alcohol impairment. They should follow the same policy and practice for suspicion of marijuana impairment for employees. Make sure you are following your policies on reasonable suspicion testing procedures if you suspect an employee is under the influence or impaired while at work.

If you have any questions regarding marijuana policies, testing procedures in the workplace, or a potential claim of discrimination based on the use of medical/recreational marijuana, please do not hesitate to reach out to our office.