Recreational Marijuana: Best Practices in a Post-Legalization World

November 15, 2022 • Previsor

More than 146 million Americans live in a state where marijuana has been legalized in some way. Just this year, the state of Missouri legalized medical and recreational marijuana use. As both state and federal governments continue to propose new amendments and laws, business owners are faced with an evolving legal landscape. What do these changes mean for employers?

On this episode of the WorkSAFE Podcast, we sit with Larry Lambert. He is Associate General Counsel at Missouri Employers Mutual. Lambert first joined us to talk about the legalization of medical marijuana in Missouri in 2019.

First, we’ll share new developments that have occurred since legalized marijuana use was introduced into the state. Then, we’ll discuss how these developments impact employers. Finally, we’ll talk about what employers can do to safeguard their workplace in the face of increasing marijuana usage.

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. This episode was recorded prior to the most recent voting opportunity, in which some of the content included speaks to possibilities that are now a reality. Be sure to consult your legal counsel when making any decisions regarding the use of marijuana or products containing THC or CBD.

Marijuana in Missouri: The latest developments

Legalization of marijuana in one form or another continues to spread across the United States. More business owners are aware of the issue it poses in the workplace. The rights of the employer are still unclear, such as:

  1. Employment law. Are you allowed to terminate an employee who uses marijuana on the job?
  2. Workers compensation. How does marijuana usage affect a claim or an injured worker’s compensation?

Legislators want guidance from state courts before passing laws. However, the courts rely on employers to bring workplace issues involving marijuana to them. As a result, not much progress has been made.

Recreational marijuana becomes legal in Missouri

Amendment 3 will refresh the conversation around marijuana use. In November 2022, Missouri citizens voted to legalize recreational marijuana. Adults 21 years of age and older will be able to purchase it. While there are limitations, such as forbidding its sale to minors and driving under its influence, this represents a major change for the state.

The line between aid and impairment

It’s difficult to determine impairment with marijuana use. For example, blood alcohol tests give a decisive result on alcohol use and level of impairment. But a positive marijuana test, usually detected through urine, isn’t as helpful for determine a person’s level of impairment at a particular time. The results can be positive for as long as a month after use. In addition, the test is also affected by frequency of use and the specific strain of plant.

A drug test positive for marijuana may no longer be enough to terminate an employee for drug use under the new legislation. Employers may also need subjective information, such as behavior they may have observed, or if the employee was using marijuana on the job.

No certification, no change

However, there is one vital thing employers should remember. These questions around workers compensation benefits concern employees with medical marijuana certifications. If an employee doesn’t have one, then there are still consequences to testing positive in a drug test.

I think the main distinction there (regarding workers compensation benefits) is that employers know that nothing changes for folks that don’t have a medical certification through the state of Missouri,” Lambert explained. “So if they are testing positive for something, even the medical marijuana law as it exists currently doesn’t provide any protection or any change for folks absent that certification.”

Classification vs. certification

In this new legal landscape, there’s a prominent conflict around marijuana use. Missouri citizens have a constitutional right to use marijuana. A certification aids them in this. However, marijuana is classified as a Schedule 1 drug at the state and federal level. This means it doesn’t have a national drug code – and can’t be prescribed by doctors, but rather, patients are ‘certified’ to use it. Therefore, marijuana could be considered a non-prescribed controlled drug – which carries work comp penalties.

Can employers penalize employees for using it, even though they have the right? Unfortunately, that still isn’t clear at the legal level.

Recreational marijuana use targets a different audience

Lambert highlights an important difference soon to be seen in marijuana users. “When states adopted medical marijuana, you didn’t see significant upticks in losses claims highway incidents things like that,” he pointed out. Medical marijuana is highly regulated. It’s possible for users to lose their certification due to abuse of the system. There is also a focus on how medical marijuana can treat pain users may have been struggling with. Consequently, they follow guidelines more closely.

Recreational marijuana will appeal to a wider audience; it will also be easier to access. Medical and recreational users will likely be two different audiences. However, the way employers deal with its use in either context won’t change.

Best practices in a post-legalization world

For Lambert, it’s important that employers don’t abandon safety efforts altogether. “That takes away most of of the ability you would have to assert any influence over your workplace and safety when it comes to drugs,” he explained. Business owners can still put measures in place to minimize the impact of marijuana. Lambert suggests:

  1. Have a drug and alcohol policy. Impairment on the job creates risk. Not only should employers have a workplace policy, they should also enforce it.
  2. Carry out pre-employment testing. If you hire often, especially in high-hazard industries, testing workers before they get on the job can help you understand how much marijuana use affects your workforce.
  3. Train leadership. Recognizing impairment in employees is difficult. But with the right training, managers and supervisors can understand what to look for, providing employers with essential evidence when needed.
  4. Direct medical care. The ability to send injured workers to selected medical providers is a benefit to Missouri employers. Reputable professionals will monitor – and carefully prescribe – the right medication and treatments.

Implementing these steps aren’t just about marijuana. They are about preventing overall impairment in the workplace. They also signal to employees that employers care about them and their safety.

For free safety posters, sample policies, and safety toolkits, visit our Resource Library. Then, learn the signs of substance use impairment in this WorkSAFE Podcast episode.

November 15, 2022
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