Paul Satterwhite

Missouri voters’ approval of a medical marijuana ballot initiative in the November election will likely create multiple issues of varying complexity for employers over the next few years.

This constitutional amendment empowers doctors to provide patients with a certification that the patient has a qualified medical condition, a broad term that includes cancer, epilepsy, glaucoma, intractable migraines, debilitating psychiatric disorders, HIV/AIDS, any terminal illness and other conditions. This certification, in turn, allows the patient to buy medical marijuana, and the amendment authorizes dispensaries to sell marijuana for medicinal purposes.

Although Amendment 2 does not cover recreational use of marijuana, the legalization of medical marijuana in Missouri will require employers — and likewise employees — to consider the potential impact on the employment relationship, including the following:

Both employers and employees must recognize that medical marijuana is not a “free pass” for employees. The voters’ decision to pass Amendment 2 does not mean employers have to tolerate employees’ use of, possession of or working under the influence of marijuana at work. However, before rushing to drug testing or considering discipline, employers suspecting use of marijuana should consider whether there is reasonable suspicion that an employee’s impaired performance resulted from off-duty use of the drug.

Employers should also anticipate that disability issues will arise under the Americans with Disabilities Act (ADA) and the Missouri Human Rights Act (MHRA), including requests for reasonable accommodations for employees who may be certified medical marijuana patients. A company that operates in multiple states should be aware that there continues to be substantial variation under federal law and state laws regarding what is permitted or required for medical and/or recreational use of marijuana.

Companies should consider revising handbooks and/or other applicable policies to address the changing landscape of marijuana laws, including Missouri’s Amendment 2.

Medical marijuana-related terminations are almost certain to lead to employment discrimination challenges in Missouri’s courts. While certain language in Amendment 2 attempts to protect employers from claims where an employee is disciplined or terminated for working or attempting to work while “under the influence” of marijuana, concerns exist with how an employer will establish that the employee was “under the influence.” Unlike alcohol testing, there is no straightforward and effective test for whether an individual is presently “under the influence” of marijuana, and there is no definition of “under the influence” in Amendment 2.

Notably, federal law continues to prohibit the use, possession, sale, transfer and manufacture of marijuana, although the federal government has consistently refused to enforce federal drug laws in incidents involving marijuana that would otherwise be lawful under state law.

Existing federal requirements are likely to create a legal quandary for employers attempting to create balance with legal medical marijuana use in Missouri. Undoubtedly, these and other issues will surface, and we will spend the next few years addressing the issues created by Amendment 2.

Paul Satterwhite is a partner in the Spencer Fane LLP Springfield office. For more information, please visit www.spencerfane.com.