What Adult-Use Marijuana Means for Missouri Employers

November 10, 2022 Advisory

This week, Missouri voters passed Amendment 3, making Missouri the 20th state to legalize use of marijuana for adults ages 21 and over. Amendment 3 will be effective and part of the Missouri Constitution as of Dec. 8, 2022. However, it may be up to 60 days following Dec. 8 before current medical use dispensaries are permitted to dispense marijuana for adult use. The key takeaways for Missouri employers as they prepare for this important change in Missouri law are as follows:

The law does not permit public use of marijuana, use of marijuana in the workplace, or driving while under the influence of marijuana.
Employers are not required to permit or accommodate use or possession of marijuana on company property and may continue to prohibit employees from, and discipline or discharge employees for, working while under the influence of marijuana.
Employers are prohibited from discriminating against a person based on (i) their status as a qualifying patient or primary caregiver with a valid medical marijuana card, including lawful use of medical marijuana outside of work and during nonworking hours, or (ii) a positive drug test for marijuana components or metabolites of a person who has a valid medical marijuana card, unless failure to do so would cause an employer to lose benefits under federal law. The anti-discrimination provision, however, still does not permit being under the influence of medical marijuana while on company property or during working hours. It also does not apply to employees in safety-sensitive positions.
Criminal records of marijuana offenses will be expunged for misdemeanors and most felony offenses. After expungement, no person may be required to acknowledge the existence of such a criminal record or answer questions about the record in any application for employment, and individuals may deny the existence of the record.

Practically, Amendment 3 changes very little for Missouri employers regarding workplace drug policies. Employers may still prohibit the use and possession of marijuana on company property and prohibit being under the influence of marijuana—whether medical or otherwise—during working hours. However, Missouri employers should:

Take measures not to discriminate against employees or applicants who have valid medical marijuana cards, such as not having blanket “no hire” policies and not automatically screening out applicants who test positive for marijuana on a pre-hire drug test but possess a valid medical marijuana card. To the extent employers use drug tests that include screening for marijuana, employers should afford the applicant or employee an opportunity to explain any positive marijuana result prior to taking an adverse action on the basis of the test result.
Consider ceasing any pre-hire inquiries about most past marijuana convictions, particularly to the extent any such records still appear on a criminal background check report.

Lawyers in Armstrong Teasdale’s Employment and Labor practice area are available to answer specific questions about how Amendment 3 will impact your business.