Opinion: What employers need to know about marijuana

Article XIV, Section 1, was added to the Missouri Constitution when Amendment 2 passed in 2018, allowing the use of medical marijuana for qualified patients with physician consent. The passage of Amendment 3 on Nov. 8, 2022, effective Dec. 8, 2022, modified Section 1 and added Section 2, enabling someone 21 years of age and older to legally procure and use various forms of legal marijuana, per the regulations in the amendments. The amendments do not change the fact that under the federal Controlled Substances Act, the U.S. Department of Justice Drug Enforcement Administration lists marijuana as an illegal “drug of abuse.”

Missouri Article XIV does not allow for the use of marijuana in the workplace or require an employer to permit or accommodate the use during work hours or on company premises.

A business, however, may not discriminate against a person in hiring, termination or any term or condition of employment, or otherwise penalize an individual, if the discrimination is based upon any one of three factors. First, if the applicant or employee is a qualifying patient. Second, if the applicant or staff member is a primary caregiver with a valid identification card. Third, if the qualifying patient legally used lawful marijuana products off the organization’s premises during nonwork hours.

A business’ rights
A corporation may refuse to hire an applicant and discipline, terminate or otherwise take an adverse employment action against someone with respect to selection, tenure, terms, conditions and privileges of employment if the person is working while under the influence of marijuana, even if the applicant or worker has a valid qualifying patient identification card.

Five specific situations detailed in Article XIV allow an employer to take adverse employment actions.

First, if the laborer tests positive for marijuana components or metabolites, and used, possessed or was under the influence of medical marijuana on the employment premises or during work hours. The same standard applies to job seekers. Second, if the legal use of a lawful marijuana product affects the safety of others in any manner. Third, if the use affects the ability to perform job-related duties in any manner. Fourth, if the use conflicted with a bona fide occupational qualification that is reasonably related to the team member’s employment. Fifth, if the company would lose a monetary or licensing-related benefit under federal law due to an applicant or employee legally using a lawful marijuana product in Missouri, since marijuana is illegal under federal law.

Steps for businesses
To successfully navigate the amendments while ensuring compliance, businesses should take the following steps.

1. Create a policy banning smoking, ingesting or otherwise consuming marijuana in any form during work hours or on company property.
2. Continue administering all aspects of existing safety and drug-free workplace policies. Add the word marijuana into the policy as appropriate, since legally acquired and legally used marijuana is not considered using an illegal drug and in some cases is even considered a prescription drug. Forbid coming to work impaired with any effects from marijuana, including being under the influence. Continue testing programs, including preemployment, random, on-the-job-injuries, accidents and reasonable suspicion. Ensure supervisors understand reasonable suspicion testing procedures, such as preparing documentation regarding inappropriate behaviors observed. Follow existing discipline and termination policies.
3. Create a safety policy and a drug-free workplace policy, if needed.
4. Train managers concerning behaviors indicating potential marijuana impairment, such as confusion, irritability, rambling, red eyes, sluggish deportment, poor coordination, difficulty focusing, lack of motivation, skunk-like odor, inappropriate or uncontrollable laughing, inability to maintain conversation and/or dialog unrelated to the topic.
5. Ensure job descriptions contain details of job duties, including quantity and quality metrics and definitions. Develop a “Knowledge, Skills and Abilities” section listing every personality trait required to be successful in the position, such as energetic, self-motivated, positive attitude, attention to detail, ability to follow directions, and verbal and interpersonal communication skills. Behaviorally define each trait. Add any bona fide occupational qualifications, such as drivers not consuming marijuana while driving or driving while under the influence. This will provide supportive documentation for discipline, termination and drug testing.

Lynne Haggerman holds a master of science in industrial organizational psychology and is president/owner of Lynne Haggerman & Associates LLC, specializing in management training, retained search, outplacement and human resource consulting. She can be reached at lynne@lynnehaggerman.com.