Tedrick Housh began his discussion of Missouri’s new medical-marijuana constitutional amendment just after the audience finished its afternoon break, complete with coffee and snacks.
“Did everyone enjoy the brownies?” Housh, an attorney at Lathrop Gage, said at a labor and employment seminar in late 2018. “I’m not going to tell you what’s in them.”
Talking about pot invariably brings up images of Cheech & Chong and references to the munchies. But for Missouri employers and employees alike, marijuana in the workplace has never been more serious.
Voters on Nov. 6 approved Amendment 2 by nearly a 2-1 margin. The amendment allows the use of marijuana for medical purposes and creates a regulatory structure for marijuana facilities. The new law goes into effect Dec. 6.
But the amendment does nothing to make marijuana legal at the federal level, so federal employees and contractors still will have zero-tolerance policies. For other Missouri employers, the approach will be less clear-cut.
Housh said the new amendment isn’t “a get out of jail free” card, in that it doesn’t bar employers from continuing to enforce a zero-tolerance policy. But the real question for companies is, should they?
“If you have trouble finding workers and you put this as one of your litmus tests . . . you may well find yourself at a disadvantage compared to other employers,” Housh told the audience.
For some industries — say, those involving heavy machinery — that approach might continue to make sense. For more creative industries, such as an advertising agency, Housh said in an interview, a less-rigid approach might make better business sense.
“If you have a zero-tolerance policy or are engaged in things that are going to catch a lot of people, be prepared for that because you’re going to have to replace all those people — and those people are probably using at the same rate as those people you just fired,” he said.
The issue is made more difficult by the nature of marijuana. The amendment specifically bars claims against employers who discipline employees for working while “under the influence” of marijuana, but the phrase isn’t defined. Unlike alcohol, there is no simple way to check for current levels of intoxication. Also unlike alcohol, evidence of the drug remains in the user’s system for weeks.
In other words, an employee who follows Missouri’s laws, uses a form of marijuana for a legitimate medical and scrupulously remains sober at work still might find him- or herself out of a job if required to take a drug test.
At this stage, it’s difficult for attorneys who represent plaintiffs in employment matters to know what cases might crop up. Jill Silverstein, a partner at Sowers & Wolf and the president of the St. Louis chapter of the National Employment Lawyers Association, said in an interview that she imagines the analysis will be similar to that of an employee who uses a prescribed medication, such as Vicodin.
If an employer were to fire someone just for using a prescribed medication to treat an underlying medical condition, Silverstein said, “I think there’s some exposure to treating them differently because there’s a disability.”
It’s not yet clear if the Missouri Legislature will add rules or if courts will set precedents to help clarify the situation. In the meantime, Housh suggests that employers focus on “job performance and common sense” rather than on the mere results of drug tests.
“If you can show me a comparable [employee] who is doing the job better and in the same position, that’s how we defend our case,” he said. “We don’t defend our case by thinking someone’s a stoner.”