Taboo Goes Up in Smoke: Medical Marijuana in the Workplace

medical marijuana dec 6

updated: September 18, 2019

The new Missouri law, which will take effect January 1, 2020, will force employers throughout the state to reevaluate their workplace drug policies. Qualified patients who have approval from their physicians will receive identification cards from the Missouri Department of Health and Senior Services allowing them and their registered caregivers to grow up to six marijuana plants and purchase at least four ounces of cannabis from dispensaries each month.

On November 6, 2018, Missouri became the 32nd state to legalize medical marijuana. Voters overwhelmingly passed a state constitution amendment allowing the possession, use, purchase and sale of pot for medicinal purposes.

The list of ailments for which the new law allows medical marijuana use is broad and, to some extent, open-ended. Missouri doctors will be able to prescribe cannabis at their discretion for qualifying medical conditions and related side effects, including:

  • Cancer treatments
  • Epilepsy
  • Glaucoma
  • HIV
  • Intractable migraines
  • Any terminal illness
  • Chronic medical conditions, such as Crohn’s disease, autism and Alzheimer’s disease
  • Psychiatric disorders, including post-traumatic stress disorder, among others

Federal vs. State Laws

There are instances, however, when state law will not apply. Because marijuana use – medical or recreational – remains illegal under the federal Controlled Substances Act, employees subject to Department of Transportation regulations, those working in safety-sensitive positions and all federal contractors are prohibited from having the substance in their systems at any time, even if their physicians are willing and allowed by state law to prescribe marijuana to treat medical conditions. Employers in these fields may terminate employees if they test positive for marijuana use. Read more about this topic here.

What Employers Need to Know about Legal Marijuana in the Workplace

Another federal law that comes into play is the Americans with Disabilities Act, which requires employers to provide reasonable accommodations to disabled employees and applicants. Until recently, federal and state courts consistently held that employers need not accommodate medical marijuana use under the ADA – even outside of working hours. But a new trend is developing: State courts increasingly are allowing employees to bring claims against employers for failing to reasonably accommodate their off-duty medical marijuana use, making compliance with the new law murky. Read more here, and note that President Trump’s candidates to replace the anti-marijuana, former Attorney General Jeff Sessions also are not considered advocates of legalizing pot use of any kind.

Workplace Drug Policies and Testing

While medical marijuana legalization is still new enough that it is unclear exactly how it will affect worker’s compensation and work environments, two things are certain: There are no state or federal laws that require employers to allow an employee to work in an impaired state or allow marijuana use in the workplace.

If you are an employer in a state where some form of marijuana use is legal, revisit your workplace drug policies. A previous zero-tolerance stance toward marijuana may no longer be viable. Still, you have a duty to protect employees and customers by providing a safe and healthy work environment, meaning workplace drug policies must balance safety concerns with business needs. Before implementing a new or revised workplace drug policy, have legal counsel review it. For more drug policy tips from an Axcet HR management expert, read this.

Another consideration is whether you can and should continue an existing marijuana testing program in a state where marijuana use is legal. Laws permitting employers to test for marijuana use vary by state, so it’s important you understand and comply with your state’s specific testing requirements.

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To discipline or terminate an employee for workplace marijuana use, the burden is on the employer to prove an employee is impaired at work, and it can be difficult to detect marijuana intoxication, especially given that some methods of ingestion prevent the tell-tale odor once associated with the drug. For the questions you should ask regarding if and how you test for marijuana use, click here.

Checklist for Employers

It will likely be close to a year before Missouri issues the state’s first medical marijuana cards, but preparing now will help your company avoid future misunderstandings and issues. Implementing related new policies and procedures will help your employees and managers navigate their way through a changing workplace where marijuana is no longer taboo.

Axcet HR Solutions recommends employers take the following steps:

  1. Review drug policies;
  2. Train managers how to identify employees who are impaired by marijuana;
  3. Educate managers about handling accommodation requests;
  4. Determine applicable DOT regulations;
  5. Take inventory of any government contracts; and
  6. Consult legal counsel.

For more information, read the questions the new Missouri medical marijuana law raises for employers in the state and how they can comply.

No Legal Advice

The information and materials on this site are provided for informational purposes only. They do not necessarily represent the position or opinions of Axcet HR Solutions or its employees, and they do not constitute legal advice.  You should consult with a qualified lawyer of your choice who is familiar with all of the facts of your situation before making a decision about any legal matter.

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Jeanette Coleman

Written by Jeanette Coleman