Medical Marijuana, Missouri, and the Workplace
Aug 01, 2019
On Nov. 6, 2018, 65 percent of Missouri voters approved Amendment 2, making medical marijuana legal in the state. Only patients with a qualifying medical condition, certified by a state-licensed physician (MD) or osteopath (DO), may apply for approval to receive prescriptions for the drug. According to Missouri Department of Health & Senior Services (DHSS), qualifying conditions include:
- Intractable migraines unresponsive to other treatment
- A chronic medical condition that causes severe, persistent pain or persistent muscle spasms, including but not limited to those associated with multiple sclerosis, seizures, Parkinson’s disease and Tourette’s syndrome
- Debilitating psychiatric disorders including, but not limited to, post-traumatic stress disorder (PTSD) if diagnosed by a state-licensed psychiatrist
- HIV or AIDS
- A chronic medical condition that is normally treated with prescription medications that could lead to physical or psychological dependence when a physician determines that medical use of marijuana could be effective in treating that condition and would serve as a safer alternative to the prescription medication
- A terminal illness
- Any other chronic, debilitating or other medical condition, including but not limited to, hepatitis C (per a physician’s professional judgment)
- Amyotrophic lateral sclerosis, inflammatory bowel disease, Crohn’s disease, Huntington’s disease, autism, neuropathies, sickle cell anemia, agitation of Alzheimer’s disease, cachexia and wasting syndrome
More recently, DHSS allowed patients to file an application online to obtain a medical marijuana ID card. The move came six days ahead of schedule than Amendment 2’s July 4 deadline. Card applications are required to be accepted or declined within 30 days of submission.
Prior to filing, patients must download a Physician Certification Form from the state medical marijuana website to be completed and signed by their physician. This must be done no more than 30 days prior to filing for a medical marijuana card.
Registration costs for the card is $25 per patient or caregiver. Home cultivation registry costs $100 to apply for a patient cultivation identity card. Missouri allows patients or caregivers to grow up to six flowering plants using an enclosed, locked facility, as well as adherence to other security regulations.
Missouri became the 33rd state to legalize medical marijuana. And as more patients with qualifying conditions apply for medical marijuana cards, how this will play out in the workplace remains uncertain.
Although legal on the state level, medical marijuana is still considered a Schedule I substance – and illegal from the federal government’s vantage point. This means that employers still have the right to drug test employees. This also means that an employer’s discretion could lead to discipline or even termination if an employee tests positive. Yes indeed, it’s a catch-22.
Missouri law firm Andereck, Evans, Figg & Battagler, LLC, with offices in Springfield, Jefferson City, Trenton and Smithville, published a Q&A last December, Medical Marijuana and Its Impact on Missouri Employers. Here are a few questions and answers they covered:
Can employees use medical marijuana at work?
No. Section 1.7(7) of the Amendment expressly prohibits the use or consumption of medical marijuana in any workplace.
Can an employer discipline or terminate an employee that is under the influence of medical marijuana at work?
Yes. However, there are some serious concerns for which it is important to be mindful. At first glance, Amendment 2 appears to be a clear safety net for employers. Section 1.7(1)(d) provides that Missouri employers are expressly protected from claims of discrimination or wrongful discharge brought by employers as a result of the individual being disciplined or terminated for being “under the influence” of marijuana while at work or while attempting to work.
However, employers may still face claims of discrimination. While Amendment 2 has attempted to protect Missouri employers from discrimination claims in the workplace, the Amendment does not define the term under the influence, instead, choosing to leave the term ambiguous. There is no guidance or delineation to determine at what point an individual technically falls under the influence of marijuana and how long a person stays under the influence after consuming. (Note: This is not the full text to the answer provided. Visit the link below for complete details.)
Can an employer fire an employee that tests positive for marijuana but has a prescription?
As of now, yes; however, similar to the answer above, the issue is complex, the amendment, and courts will likely need to step in to provide guidance… (Read the entire text of this Q&A at https://www.lawofficemo.com/medical-marijuana-and-its-impact-on-missouri-employers)
Addressing the Catch-22
The law firm urges individuals to keep an eye on the amendment’s anti-discrimination statute (Section 290.145) that prohibits employers from firing, disciplining or refusing to hire an individual because he or she lawfully uses alcohol or tobacco products while off the clock and while off the employer’s premises if the use does not interfere with the employee’s work performance or duties.
In February, Senate Bill 227 was introduced before the Missouri Small Business and Industry Committee. If passed, the bill would allow employers to drug test employees and prospective employees for medical marijuana – and would give employers discretion to take action based on results.
According to bill sponsor Sen. David Sater, R-Cassville, the bill would not make drug testing mandatory. That decision would be left up to employers.
“A lot of employers that I talked to were unsure as to what to do,” Sater said. “They want to make sure their workplace is safe, but they weren’t sure if they could do drug testing after Amendment 2.”
Because Missouri doesn’t have an employee protection law for legal use of medical marijuana, human resource experts suggest that employers get proactive. Among the questions (and these don’t even begin to scratch the surface) HR firms recommend employers ask are:
- Should we update our drug use policies to accommodate medical marijuana users?
- When is it in our best interest to discipline or terminate an employee who tests positive?
- Do we allow medical marijuana use, yet fire for use of other substances?
- Do we maintain a zero-tolerance, period?
- How do we address medical marijuana use and CDL drivers?
- What is our policy for health care providers and caretakers who use medical marijuana?
- What is considered an impairment as a result of medical marijuana use?
- Are there exceptions for certain medical conditions?
- Under what circumstances are employees tested?
- What are employees’ rights and responsibilities?
- What is the time frame in which testing must take place after notification?
Consequently, some employers may have to walk the tightrope. Florida-based Global HR Research writes, “These days, companies must remain aware that a failed drug test and subsequent firing (or denial of hire) – though justified according to the posted substance abuse policy – could be reversed in court resulting in a judgment for back wages, punitive damages and attorney fees.”
In 2014, a woman who applied for a summer internship sued and won after they refused to hire her for being a registered medical marijuana user. “This decision sends a strong message that people with disabilities simply cannot be denied equal employment opportunities because of the medication they take,” said an attorney for the American Civil Liberties Union (ACLU). “If employers were permitted to discriminate against those using medical marijuana, then the good work done by those to enact the law will be completely undone. The judge’s decision makes clear that this law is not an empty promise.”
Deep in the Weeds
Regardless of the nuances, uncertainties and blatant unknowns, many patients struggling with debilitating conditions are willing to travel unfamiliar terrain and bypass the catch-22. “It’s great to talk to someone about it and they understand that I don’t want to do opioids,” one patient said. “I’m in a tremendous amount of pain. It makes it so I can’t sleep, function, work or anything and I’m hoping to find a better way for my lifestyle.”
However, some want nothing to do with medical marijuana, regardless of the relief it promises as a viable alternative to opioids, or its implications for reducing opioid addiction. Sater, who owned a pharmacy for 30 years, and said his background was the reason he proposed Senate Bill 227, isn’t swayed.
“I don’t want someone who shows positive for marijuana involved in my business,” he said. “I wouldn’t feel comfortable knowing that I had someone who was using, even for medicinal use.”
Acceptance for facility applications began Aug. 3, 2019. The deadline for approval is Dec. 31, 2019.
As for patients waiting for approval, DHSS says the state has 30 days to reply and if it doesn’t, applicants are automatically approved.
For more information, visit https://health.mo.gov/safety/medical-marijuana/index.php.