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Missouri Voters Approve Legalization of Recreational Marijuana - What Employers Need to Know

By Stephen B. Maule - McMahon Berger P.C.

November 15, 2022

On November 8, 2022, citizens of Missouri voted to amend the Missouri Constitution, making the cultivation, sale and use of recreational marijuana legal under certain circumstances. The approval of Amendment 3 follows the passage of Amendment 2 in 2018, legalizing the production and sale of medical marijuana throughout Missouri. Of particular note, Amendment 3 expressly provides:

This section is not intended to allow for the public use of marijuana, driving while under the influence of marijuana, the use of marijuana in the workplace, or the use of marijuana by persons under twenty-one years of age.

Employers should be familiar with the provisions of Amendment 3 to minimize potential legal risks going forward.

The primary focus of Amendment 3 is to regulate and tax the production and sale of recreational marijuana within the state, as well as provide a means to expunge the criminal records of certain individuals who have been found guilty in the past of particular marijuana-related offenses. In short, it now will be legal for individuals at least 21 years of age to possess and purchase up to three (3) ounces of marijuana. Further, adult individuals can cultivate up to six (6) flowering marijuana plants (limited to twelve per household) after obtaining a registration card to do so from the Missouri Department of Health and Senior Services. Sales will be taxed at a 6% rate, in addition to state and local tax rates, with the proceeds to be used to support veterans’ programs, legal services for low-income residents, and other non-profit organizations.

As noted, Amendment 3 authorizes Missouri courts to expunge certain marijuana-related offenses that would not have been unlawful had Amendment 3 been in effect. The effect of such expungement shall be to restore the person to the status they had prior to the arrest, plea or conviction. The opportunity to expunge their record does not apply to individuals who have been found guilty of distributing or delivering to a minor, any offense involving violence, or any offense involving operation of a motor vehicle while under the influence.

In addition, Amendment 3 changes Missouri’s existing medical marijuana law. Specifically, nurse practitioners now are permitted to recommend medical cannabis for their patients, whereas before only licensed physicians were allowed to make such recommendations. Pursuant to the 2018 Amendment 2, medical marijuana registration cards were good for just one year. Approval of Amendment 3 lengthens the validity of such cards to three years. Finally, and perhaps of most significance to employers, Amendment 3 implements certain protections from employment discrimination to medical marijuana patients.

Pursuant to Amendment 2, individuals with a valid medical marijuana registration card had no express cause of action against a prospective, current or former employer for alleged wrongful termination or discrimination if the individual violated the employer’s policy against being under the influence of marijuana while at work. Amendment 3 adds specific language prohibiting an employer from discriminating against an individual who owns a medical marijuana registration card with respect to hire, termination and any term or condition of employment. Significantly, such prohibition against discrimination does not apply if the individual is deemed to be under the influence while at work in violation of the employer’s policy. Further, the prohibition does not apply if the individual tests positive for marijuana and the employer establishes they used, possessed or were under the influence on the employer’s premises during working hours.

The prohibition against discrimination does not apply if the employer would lose a monetary or licensing-related benefit under federal law – such as being a federal contractor or subcontractor. In addition, if the employee holds a position such that the use of marijuana “affects in any manner” their ability to safely perform their job responsibilities or the safety of others, or such use conflicts with a bona fide occupational qualification that is reasonably related to their employment, then Amendment 3 would not prohibit an employer from adhering to its policies and taking appropriate action, such as termination.

Notably, Amendment 3 does not grant any rights to users of recreational marijuana in the employment context. Accordingly, an employer is not required to permit or accommodate an individual’s use of recreational marijuana in violation of its policies. Employers can prohibit the use, sale and possession of marijuana on its premises, and they can prohibit employees from being under the influence while on working time. Employers also can refuse to hire, discipline, discharge or take other action against individuals who are deemed to be under the influence at work.

It remains illegal to operate a vehicle, aircraft, dangerous device, or boat while under the influence of marijuana, medical or recreational. However, evidence must be established that the individual in fact was under the influence at the time – mere presence of marijuana in their system will be insufficient to establish under the influence. Further, neither Amendment makes it lawful to undertake any task that, if done so while under the influence of marijuana, would be deemed negligent.

Neither Amendment 2 nor 3 defines “under the influence.” Employers are left to decide on a case-by-case basis whether an individual is under the influence of marijuana and, thus, in violation of Company policy. Accordingly, employers should ensure their managers and supervisors are trained on recognizing symptoms of impairment. Such training should include documenting the signs observed so that if a decision is made to act, the employer has both written and testimonial evidence upon which to rely should any adverse action be challenged.

Employers should consult with counsel to determine the approach that best fits their organization and culture when addressing marijuana in the workplace. At a minimum, a review of applicable policies should be undertaken immediately.

www.mcmahonberger.com

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