Marijuana is more accessible than ever in Missouri. Medical usage became legal at the state level in 2018. Then, Amendment 3 changed the landscape further just four years later. Residents can now purchase it for medical and recreational use. Marijuana in the workplace has significant implications. How can employers protect their businesses and employees? What are practical measures available to them?
On this episode of the WorkSAFE Podcast, we invite a previous guest to join us again. Larry Lambert is Associate General Counsel at Missouri Employers Mutual. He has been educating employers, employees, and business communities on marijuana and the workplace since 2018.
First, we’ll discuss how Amendment 3 affects marijuana use in Missouri. Then, we’ll review the impact of recreational marijuana on the workplace. Finally, we’ll share three practical steps employers can take to protect their businesses.
Listen to this interview on the WorkSAFE Podcast, or read the show notes below.
Note: This discussion is about a developing topic and is for educational purposes. Be sure to consult your legal counsel when making any decisions regarding marijuana use or products containing THC or CBD.
Marijuana in Missouri today
Over the past five years, Missouri legislation has given state residents two key capabilities regarding marijuana use. Under professional supervision, Missourians now have a constitutional right to use marijuana as a medical treatment. Adults over the age of 21 can purchase products at a licensed dispensary. Both capabilities have an essential distinction. The state’s constitution protects medical marijuana use. The ability to buy recreational products is a privilege, similar to purchasing alcohol.
However, these changes also share an important commonality. Whether using for medical or recreational reasons, marijuana in the workplace is not allowed. An employee is not permitted to be under the influence of marijuana while working.
New amendment, new opportunities
For legislators, Amendment 3 was an opportunity to change aspects of marijuana use. For example, the bill adds nurse practitioners as qualified supervisors for those using marijuana as a medical treatment, in addition to doctors. It also specifies that employers can’t discriminate against an employee for medical use during any part of the hiring process, as long as they have a valid certificate and don’t use it during work hours. Federal contractors are also newly protected from repercussions, especially where their government contracts have specific requirements.
Amendment 3 also adds a few new caveats. Employees can’t use marijuana if it affects their ability to perform job-related employment responsibilities, the safety of others on the job, or if it conflicts with a genuine occupational qualification. For instance, if an employee has to be on-call during a specific period, marijuana use could be questioned. These new additions don’t prohibit employees from using marijuana. They protect employers from violating an employee’s right to use medical marijuana if it causes one of the above risks on the job.
These amendment additions are untested now. Further, they will likely be decided by disputes in future court cases. Lambert highlights that legal counsel should be an employer’s first point of contact in such a situation. “The good news is that you as an employer, are in the same shoes as every other employer as it comes to this,” he shared. “Law firms I’ve seen have been beefing up their knowledge on these sections, so finding that counsel shouldn’t be terribly hard.”
Recreational marijuana use
Recreational marijuana is easier than ever to access. Residents who want to buy it can visit a local dispensary. It comes in a variety of forms, from pills to powders to pastries. But that purchasing power also comes with restrictions. They prohibit users from:
- Operating or being in physical control of motorized transport. For example, motor vehicles, trains, aircraft, and boats.
- Endangering others while under the influence. This includes tasks that would constitute negligence, recklessness, or professional malpractice.
- Using marijuana in the workplace or on an employer’s property. Employers can still discipline employees who are under the influence on the job – up to and including termination.
Positive drug tests: A beginning, not an ending
Now that medical and recreational marijuana are available for legal use, employers may need to take a different approach to drug testing. They aren’t required to accommodate marijuana use on the job. But a positive drug test can mean a lot of things.
Marijuana drug tests aren’t as well-developed as some of their counterparts. For example, like breathalyzer testing for alcohol impairment. Marijuana can remain in a person’s system for as long as 30 days. A positive test reveals an employee has used marijuana. It doesn’t reveal when it was used or under what circumstances.
Lambert recommends that employers avoid making assumptions. “You’d be well served to treat that drug test as the beginning of an assessment, rather than a conclusion, as employers have been used to doing.”
Practical ways to protect your workplace
As the conversation around legalized marijuana continues to change, employers are left wondering what action they can take to protect their workplace. Where does a business owner begin?
“Culture is where you start,” Lambert explained. “Culture is the most important tool you have as an employer to protect against workplace injuries from all sources, specifically around drugs.” He points to a few key steps to creating the right environment:
Step 1: Create a drug-free workplace program
“The first step to creating that culture and bolstering that culture is maintaining and enforcing a drug- free workplace program,” Lambert shared. “That’s essential, and kind of the centerpiece of that should be your written drug policy.” A written drug policy should clearly prohibit employees from being under the influence of alcohol or other substances in the workplace.
It’s critical the employers enforce this policy. “If you’re in a court for any reason,” he added, “That policy is going to be one of the first pieces of evidence that you’re going to need to show.” Did you have a policy? What was required of employees? Were you upholding that policy? Having answers to these questions in advance will be key to protecting your business. “A written policy can be a detriment if you have it and don’t enforce it.”
Step 2: Implement pre- and post-employment drug testing
With legalization, drug tests are just the beginning of a conversation. But that doesn’t mean they aren’t important. There are several types of drug tests employers have at their disposal:
- Pre-employment. A test completed prior to employment.
- Post-employment. A test completed once a formal employment offer is made, but before an employee begins working.
- Random. Testing done at unscheduled times.
- Post-incident. A test carried out shortly after an incident occurs in the workplace.
In legal decisions, practical evidence is key. “Having just subjective observations is going to be a hard thing to to win on absent that positive test,” Lambert shared.
Step 3: Train staff to recognize impairment
Key staff members need to be trained to recognize signs of impairment in employees. This is especially important in high-hazard industries, where there can be several safety-sensitive positions. Since legalized marijuana became available, more and more training facilities are offering specialized training. For example, Tomo Drug Testing, located in Springfield, Missouri, offers courses in substance use recognition and medical marijuana.
“Send a supervisor, depending on the size of your workforce, to get that training,” Lambert encouraged. “Completing that training, it does several things. It increases accountability and responsibility in particular individuals, so that you know somebody’s on the lookout for signs of impairment. Not just from cannabis, but from anything on the job site.” It also empowers employees to take action when they see something wrong. A positive test combined with subjective observation strengthens an employer’s position in disputes.
No matter what, take action
Some employers are overwhelmed by the prospect of employee marijuana use. A few opt for a zero-tolerance policy. Lambert advises them to be careful with this approach and seek legal counsel before taking such a position. Others simply want to throw their hands up and avoid the topic. But this isn’t ideal, either. “A hands-off approach can increase their legal liability should something happen,” he shared. OSHA’s General Duty clause also requires employers to prevent known hazards to the extent that they can. And while medical users have been found to show responsible behavior, recreational users are a new frontier. They are likely to be less careful and less educated on dosage and effects.
Legalized marijuana will continue to change the employment landscape. Taking these steps allows you to protect your business in an uncertain environment – and let employees know you care about them and their safety.