Guest Commentary

’What if my workers show up high?’ What employers need to know about medical marijuana

Lauren Sobaski, attorney in the Kansas City office of labor and employment law firm Fisher Phillips.
Lauren Sobaski, attorney in the Kansas City office of labor and employment law firm Fisher Phillips.

Missouri’s Amendment 2, which Missouri voters approved on Election Day, legalized medical marijuana use for qualifying patients. The change raises questions about how this development will affect Kansas City workplaces. Here are answers to some of the most common questions Missouri employers may have about this new reality.

What is Amendment 2?

Amendment 2 makes Missouri one of 33 U.S. states that have legalized marijuana to some degree. Amendment 2 does not change federal law, which classifies marijuana illegal, even if used for medical reasons.

Do I have to let my employees work while high?

No. Missouri employers may enforce their drug-free workplace policies even after the new law takes effect. In fact, the new law prohibits employees from filing claims against Missouri businesses for wrongful discharge or discrimination based on the employer prohibiting the employee from being under the influence of marijuana while at work, or disciplining the employee for working or attempting to work while under the influence of marijuana.

Can employees consume marijuana at work?

No. The amendment also prohibits public use of marijuana. In addition to enforcing your drug-free workplace policy, you can similarly adjust other policy language prohibiting marijuana consumption at the workplace in any form.

Can I still drug test applicants and employees?

Yes. If you have a drug testing policy and practice, continue following it and enforcing your disciplinary policies. If you employ individuals in safety-sensitive positions or other jobs that require drug testing under federal or state guidelines, you will almost certainly want to continue your drug testing practices.

Can I test employees for marijuana impairment or influence?

Maybe. The rub here is that testing for marijuana impairment or influence hasn’t caught up with the laws. An employee who consumed marijuana days or weeks before may test positive for marijuana but not be impaired. Marijuana’s active ingredient THC stays in the bloodstream long after consumption, sometimes for weeks.

While you may not be able to adequately test for marijuana impairment, you can test for and subsequently discipline workers who have THC in their systems while at work.

Is medical marijuana use a reasonable accommodation in Missouri?

It’s too soon to tell. Amendment 2 does not address this issue and we cannot predict how a Missouri court would rule in cases involving reasonable accommodations for qualified patients using medical marijuana. Employers will need to explore “what if” scenarios.

For example, will you extend reasonable accommodations to medical marijuana-using applicants or employees who happen to have the drug in their systems while on duty at work or while submitting to a pre-hire drug test, despite the fact that they do not appear high during those times? Given that this conundrum could run into direct conflict with a zero-tolerance drug policy, you will need to decide how to respond to these inevitable situations.

When will the new law take effect?

The Secretary of State’s office certified the election results Nov. 30, so the law has become official. The Missouri Department of Health is developing regulations to implement the law. At that point, however, additional administrative requirements might mean more time could pass before the first prescriptions can be issued. In other words, you might not see your first applicant or employee with a valid medical marijuana card until late 2019 or early 2020.

Although that seems like a long time from now, you should begin preparing as soon as possible. Here are recommended next steps for Missouri employers:

▪ Revise employee handbooks and drug-testing policies.

▪ Review any federal government contracts.

▪ Train managers to identify marijuana impairment.

▪ Train managers for conversations with employees regarding medical marijuana.

▪ Carefully consider medical marijuana-related accommodation requests.

The wisest course is for employers to stay tuned as the law develops and is interpreted by Missouri courts.

Lauren Sobaski is an attorney in the Kansas City office of labor and employment law firm Fisher Phillips.