Missouri recently held its primary elections on August 2nd, and we now know who will be on the ballot for the general election in November.  However, one thing we don’t know is whether recreational marijuana will be on the ballot.  The Secretary of State has until August 9th to determine if the proponents have enough signatures to be on the November ballot.  Reports are currently mixed as to whether there are enough signatures; time will tell.

 

Whether recreational marijuana makes it on the ballot or becomes legal, it’s always a good time to look at your drug policy.  As most employers know, an injured employee could suffer a penalty against their workers’ compensation benefits if they used illegal or non-prescribed controlled substances “in conjunction with” their injury, or the use of such substances was the “proximate cause” of the injury.  Ever since the legalization of medical marijuana in Missouri, there has been some confusion as to how to navigate this issue.

 

Missouri legalized medical marijuana by amending the Missouri’s constitution.  An article was added to the state constitution that implemented the productions, testing, sale, and use of medical marijuana.  It is a very lengthy article.  This article will address some of the issues related to the use of medical marijuana and how that use remains regulated in the context of the employment relationship.

 

Most importantly, it should be noted that the Missouri medical marijuana law (MMML) does not allow an individual to be under the influence of marijuana while at work.  So, even though the MMML prevents an employee from suffering a civil penalty based on their use of marijuana pursuant to the MMML, if they are under the influence of marijuana while at work or when they are injured, all the state penalties in Section 287.120.6 apply.  Of course, the difficulty with marijuana is determining if an individual is under the influence.  Marijuana testing is limited, and urine tests do not definitively determine the level of THC in an individual’s system. However, if there is evidence of use at work or shortly before the accident (such as a witness observing use during a lunch break), evidence can be presented that the employee was under the influence at the time of the accident.

 

If an employee is sent for a post-accident drug test, tests positive for marijuana, and presents a MMML card demonstrating the right to legally use marijuana in MO, that positive test is unlikely to be sufficient to assert any form of workers’ compensation drug penalty. 

 

It is important to remember that marijuana remains illegal at a federal level.  It cannot be prescribed.  This is a common misconception.  No doctor prescribes marijuana, and they are not permitted to by the DEA.  Rather, a doctor certifies that an individual has one or more of several scheduled conditions or disabilities that qualifies in Missouri for issuance of a medical marijuana card.  It is very unlikely under the current scheme that an employer would be required to provide or pay for marijuana to “cure and relieve the employee from the effects of the injury.” See, Section 287.140.  Since a doctor does not prescribe marijuana, it is not recommended treatment.

 

Should you change your drug policy for post-accident testing and restrictions or use?  Probably not.  Of course, this depends entirely on your current policy.  As it relates to employee’s drug use (please note, this is not intended to address the hiring process or post-offer drug testing), it is generally best to mimic the statute one intends to implement.  Generally, a policy should restrict the use, possession, consumption, or presence in one’s system of “illegal or non-prescribed controlled substances.”  This is the verbiage that is required in Section 287.120.  That is not to say this exact language is not required, however, by having this specific language, your policy is most likely have the benefit of the penalties found in Section 287.120.6.  This language covers marijuana as it remains an illegal and controlled substance.  If the employee has a MMML card, the possession of the card avoids the implementation of the civil penalty, SO LONG AS THE EMPLOYEE ADHERED TO THE MMML.  For example, if they are under the influence at work, the penalty will apply.

 

This issue is not going away.  Whether recreational marijuana makes it on the November ballot or not and whether it passes or not, recreational marijuana is coming.  Depending on the implementation of recreational marijuana, employers will have to address their policies.  All stakeholders will have to deal with the dichotomy of state versus federal legalities.  Employers with employees in multiple states already must address different restrictions in different jurisdictions.  It’s never a bad time to look at your drug policy and consult with your legal counsel to consider updates that address the ever-changing landscape.

 

As always, if you have any questions regarding recreational or medical marijuana in the workplace, please reach out to me at Matt.Murphy@vbmlaw.com or call our office 573-777-4488.