Legal use of marijuana is a hot topic in many communities across the nation. Missouri opened its doors to medical-only use of the plant in 2020. It provides an innovative option for those dealing with chronic pain. However, it also affects business owners across the state. What has changed in the first year of legal use? How can employers make informed decisions?
On this episode of the WorkSAFE Podcast, we sit down with Ruth Binger. She is a Principal at Danna McKitrick, P.C., a full-service law firm based in St. Louis, MO. Binger has over 30 years of experience practicing law. In addition to her work with clients, she specializes in working with entrepreneurs. She also leads several independent peer advisory boards.
First, Binger will help us learn about the current state of affairs in Missouri. Then, she’ll share some best practices employers may consider to protect themselves and their employees. Finally, she’ll talk about what the future of medical marijuana use might look like.
While Binger is a licensed attorney, this information is provided for educational purposes only and should not be relied on as legal advice.
Listen to this episode on the WorkSAFE Podcast, or read the show notes below.
Medical marijuana: The current state of affairs in Missouri
Medical marijuana became a pain management option for Missouri residents in 2020. Several licenses were created so marijuana could be grown, processed and sold in Missouri. Any Missourian who wants to use it needs permission from their doctor and a patient ID card from the Missouri Department of Health and Senior Services.
Many employers were concerned about what medical marijuana would mean for workplace safety. Most had a drug and alcohol policy in place. Could they still employ medical marijuana users? Would usage interfere with job safety? How would they know if an employee was under the influence?
Then, the COVID-19 pandemic happened.
Closed courts lead to case law delays
The first year of legal use was filled with the unexpected due to COVID-19. Courts produce case law. These laws help set expectations for future situations. However, many courts are closed in response to the pandemic. It’s likely any cases in progress have been delayed. As a result, no case law is being developed.
“Any case law that is developed is going to be from other states,” Binger explained. Missouri is in a different situation than most other states. A constitutional amendment allows legal use. It also overrules other statutes and regulations already in place. This affects everything from current work comp statutes to unemployment benefits.
“Under the influence” has no current definition
A major factor in medical marijuana use is defining when someone is “under the influence”. Whether or not someone is under the influence on the job is important. If an incident occurs, then it can affect potential work comp payouts. Some people show obvious signs, like red eyes or poor coordination. But others don’t show any signs at all.
The state of Missouri tried to make a definition. For example, it is easy to classify to if someone is under the influence of alcohol. Blood alcohol content (BAC) is easy to measure. Tests can also provide a quick and sure answer. But marijuana symptoms can look different depending on the person.
“What does ‘under the influence of marijuana’ mean to you?” Binger asked. Red eyes? A mean case of the munchies? A certain smell? The state couldn’t agree on one definition. She expects that there won’t be a solid one for the next couple of years.
States moving away from “zero tolerance”
Before medical marijuana, most businesses were “zero tolerance”. This meant that employees could be disciplined or terminated for any drug use. Drugs like cocaine, heroin – and marijuana – were strictly off limits. However, many states are shifting their position. “The courts are trying to get into exactly what is happening in front of you,” Binger explained. They want to see the whole situation, and understand the reasons for taking medical marijuana.
Under Missouri law, a state-licensed physician needs to recommend medical marijuana as a treatment option. Most often, it is prescribed for chronic pain. Binger has seen the majority of cases for it brought by cancer patients. Medical marijuana offers them relief from chronic pain. It’s also been known to work better than opiates. Other state courts have begun to rule in favor of the patients. The COVID-19 pandemic has also added new perspective to dealing with the long-term effects and pain that comes with illness.
Medical marijuana: Safety measures for employers
Many employers are concerned about medical marijuana use by their employees on the job. It can be hard to tell whether or not someone uses it. An employee can fail a drug test, but never appear to be under the influence. And just like other health information, the privacy of medical-only users is protected. Employers can’t demand that information from an employee. So what measures can employers take to protect their businesses and other employees? Binger shared her recommendations.
Implement a zero-tolerance policy
Marijuana comes in many different forms. People can purchase it in everything from body oils to edible snacks. Further, each one stays in your system for a different amount of time. Some are gone in a matter of hours. Others can stay in your system for days.
Since there’s no case law that prevents it, Binger pointed out, employers can implement a zero-tolerance policy. These policies were made because current tests to measure for drug impairment aren’t absolute. Employers can set a zero-tolerance policy, but should back it up with a behavioral analysis form.
Use a behavioral analysis form
In addition to a zero tolerance policy, a behavioral analysis form helps support employers. Employers who suspect employees of being under the influence should keep record of it. “You’re showing that there were signs of being under the influence,” Binger added. Managers and supervisors can be trained to use this form. It documents symptoms employees might display, such as issues with:
- The presence of drugs or drug residue. Are there drugs present in the work area? Was evidence of drug use left behind?
- Appearance. Does the employee have a messy appearance? Are they sweating? Is there an odor of alcohol or drugs?
- Behavior. Is the employee acting unusually? How is their speech and awareness?
- Motor skills. Is the employee stumbling or falling? Having trouble maintain their balance?
Maintain an open relationship
Employers can’t ask their employees about medical marijuana use. However, employees can share that information on their own. Binger noted that this information gives employers a unique opportunity. Without case law, they have some flexibility. If an employee lets you know they use medical marijuana, then look at the information you have.
First, review their job description. Do they operate heavy machines? Do they need to drive often in a company car or truck? The ADA has an exception called the Direct Threat Defense. It means that if an employee’s disability, or the way they accommodate it, threatens the safety of themselves or others, they can be terminated. But Binger pointed out that this doesn’t have to be an employer’s first response. For example, employers can offer a different position if one is available.
Above all, safety should be a top priority for employers. If an employee can work in another role, then they should. But if their marijuana use is a threat to safety, employers should seriously consider potential impact.
Medical Marijuana: Looking to the future
For many employers, 2020 was a hard year. Many were focused on keeping their doors open. Workers were laid off. A large part of the workforce now works from home. Binger admitted that some medical marijuana use may have slipped under the radar for this reason. Employees working remotely may not feel the need to share.
There is also a reality that many businesses just aren’t ready to deal with it yet. “Many times the employer won’t know, and won’t care,” she shared. This is even truer if an employee doesn’t deal with customers.
However, medical marijuana is here to stay. “This issue’s not going away,” Binger said with finality. There are currently 35 states that allow marijuana is some form. And while marijuana is put on the same level as cocaine and heroin now, she sees that changing in the future. At some point, it may be up for the states to decide. But for now, there isn’t one solution that works in every situation. Employers can choose their approach.
Binger recommends working with an employment lawyer. If you can’t afford one, then considering a zero tolerance policy and behavior form are a good place to start. And developing an open relationship with your employees helps keep safety important no matter what issues there might be. Medical marijuana presents a challenge, but not an impossible one. “It’s navigable,” Binger said. “You just have to think through it a bit.”