by Ruth Binger
Due to the pandemic and simultaneous labor shortage, Missouri courts have not had an opportunity to consider Amendment 2 and employment issues related to medical marijuana in the workplace. Amendment 2 allows state-licensed physicians to recommend medical marijuana to patient employees diagnosed with chronic debilitating conditions. The amendment also protects employees with a medical marijuana card issued by the Department of Health and Senior Services (DHSS) and keeps them from being terminated unless the employer proves that the employee is “under the influence of marijuana.”
No reliable tests are yet available to scientifically confirm if someone is “under the influence” of marijuana. A person will test positive for marijuana for up to 25 days after use. However, there are impairment tests on the market that can help determine whether workers in safety-sensitive positions are at risk by testing current fitness for duty. Those tests include computer-based alertness tests that are similar to video games and apps that test for cognitive and motor impairment. Some tests take 20 seconds and are advertised as testing for fatigue, dehydration, emotional distress, alcohol, cannabis, etc.
Without more guidance, employers will have to create Observed Behavior tests that are signed by company personnel in order to bolster an argument of “under the influence.” Furthermore, because Amendment 2 is a constitutional amendment, it would necessarily supersede existing Missouri law, particularly workers’ compensation and unemployment statutes.
Another possible employee defense is one associated with the Americans with Disabilities Act (ADA), in which the employee is taking physician-prescribed medical marijuana for a chronic debilitating condition that is protected by the disability laws. Currently, Missouri has no case law regarding this subject. At the U.S. case law level, when courts are asked to apply federal law (ADA) versus state law (e.g., Missouri Human Rights Act), federal courts are not finding a protected disability due to the employee using an illegal drug.
The ADA does not protect employees engaging in the “illegal use of drugs.” That term is defined, in part, as uses authorized by the Controlled Substance Act, under which marijuana is classified as a Class 1 drug (similar to heroin) with no “currently accepted medical use in treatment in the United States.” Normally, employees with protected conditions must be accommodated by an employer if at all possible. (Some jobs cannot be accommodated, such as drivers, DOT workers, first responders, heavy machinery operators, etc.) However, in federal cases, there is no duty to accommodate for such a use, even if marijuana is prescribed. This could all change if the law changes to deschedule cannabis as a Class 1 drug. Then the federal and state courts’ current stance of handling medical marijuana cases under the ADA would change.
In the interim, with no guidance, if employers wish to test for marijuana and an employee fails the test but produces a DHSS medical marijuana card, the prudent strategy is to assume that the disabilities law protects the disabled employee and act accordingly. No company wants to be the test case.
This is a tricky area which will continue to see a great deal of change.
Ruth Binger, employment attorney with Danna McKitrick, P.C., serves both emerging and mature businesses concentrating in corporate law, intellectual property and technology law, cybersecurity, digital media law, and labor and employment law. Her commitment to the success of small to medium-sized businesses, and her understanding of multi-faceted issues inherent in operations, are what distinguish Binger’s practice. Ruth can be reached at 314.889.7167 or email@example.com.