December 8, 2022
On Election Day 2022, Missouri voters passed Constitutional Amendment 3, which, among other things, decriminalizes the purchase, possession, and use of marijuana for recreational and personal purposes. The measure goes into effect December 8 and contains important provisions employers must immediately grapple with:
- Employers may not discriminate against a person in hiring, firing, or other employment actions (including decisions on promotions) for having a medical marijuana card, lawfully using recreational marijuana during off-duty hours, or testing positive for marijuana.
- Employers may still enforce drug-free workplace rules, and they may discipline or terminate employees for using, possessing, or being under the influence of marijuana while at work. However, employers would be advised to review and revise their employee handbooks to reflect (except for certain classes of employees) that hiring, discipline, and termination decisions may not be made on the basis of legal marijuana use.
- In areas which have not enacted “Ban the Box” ordinances, employers should evaluate the use of background checks of applicants. The Amendment provides for expungement of certain non-violent marijuana convictions and relieves applicants of the obligation to disclose the convictions, once expunged.
- Certain regulated industries will be largely unaffected. Where a federal regulation prohibits the use of illegal drugs, such as in certain medical and transportation fields, employers should continue to defer to the applicable federal regulations.
There remain many unanswered questions about how legal recreational marijuana will impact the workplace. The most critical concern is no doubt the safety of employees and others. Guidance from the EEOC and Job Accommodation Network regarding legal and illegal drug use will no doubt prove instructive in addressing workplace concerns. Employers should keep in mind a few important principles in addressing testing for marijuana:
- Drug testing and drug-free workplace rules must be applied in a non-discriminatory manner with regard to age, race, sex, disability, or any other protected class.
- Medical use of marijuana will continue to fall under the Americans with Disabilities Act, and so reasonable accommodations may include waiving a positive test result. Keep in mind that certain mental or physical conditions (such as traumatic brain injury, diabetes, effects of a stroke) may be similar to the signs of marijuana impairment.
- Testing for THC levels is notoriously difficult, as habitual users build up a higher “baseline” level of THC. A person may have THC, even in high levels, in their system and not be “impaired.”
The ADA regulates drug testing generally – both for legal and illegal drugs. For example, traditionally under the ADA, an employer could not drug test an employee unless the employee’s objective, observable actions demonstrate a direct threat of harm to the employee or her co-workers. If that threat cannot be removed by implementing a reasonable accommodation, then appropriate job action should be taken.
The construction industry is in a particularly difficult spot. Most laborers will not be subject to federal DOT regulations. Yet, laborers are often in safety-sensitive positions. Contractors have a non-delegable duty to maintain a safe workplace, and on its face, marijuana intoxication seems incompatible with maintaining a safe workplace. What are employers to do when testing for THC is so elusive and ensuring workplace safety is of such critical importance? The answer again may lie in the ADA.
While workers’ compensation is generally the exclusive remedy for workplace injuries, employers may be liable if an employee engaged in affirmative negligent acts that purposefully and dangerously caused or increased the risk of injury. Will courts or juries find that marijuana use on a construction site is such an act? That remains to be seen. However, it does not take much imagination to envision a finding that the willful ingestion of marijuana prior to operating heavy machinery purposefully and dangerously increased the risk of injury.
With regard to injuries to non-employee third parties, the Amendment probably reduces the risk of a negligent hiring claim for habitual marijuana users, as employers are prohibited from discriminating in hiring. However, the Amendment may create a substantial risk of claims for negligent supervision and retention. That is, employers may not be able to simply turn a blind-eye to on-duty marijuana impairment. Furthermore, employers may be on the hook for not training managers on signs of marijuana impairment. Unfortunately, this Amendment provides no safe harbor or immunity, so employers should probably monitor employees for signs of impairment, subject to the guidelines in the ADA.
Finally, the biggest open question is an employer’s potential liability for discrimination based on marijuana use. The Amendment states that: “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” off-duty use, holding a medical marijuana card, or testing positive for marijuana (unless they were caught using or possessing while on duty). The Amendment does not provide for a private right of action or create a statutory framework for lawsuits similar to the Missouri Human Rights Act. Whether the Amendment will provide an exception to at-will employment, providing a cause of action for wrongful termination, remains to be seen. The language in the Amendment, which will be part of Article XIV of the Missouri Constitution, may rise to the level of being a “clearly mandated” public policy in the state, paving the way for potential wrongful termination claims.
In the short term, the enactment of Amendment 3 without a regulatory framework for dealing with employment issues will no doubt cause headaches for employers across the state. In the absence of legislation or administrative regulations, employers will have to wait and see, subject to the vagaries of the court system. In the meantime, Baker Sterchi attorneys will be closely monitoring the impact of legal recreational marijuana on employment.