Once upon a time, companies invested great effort, testing and expense to find out whether workers were using marijuana.
But that was a different world. This is the modern era where ignorance may indeed be bliss.
“It really depends on the employer and what the priorities are,” said Benjamin Wesselschmidt, an attorney at Sandberg Phoenix. “That’s a policy decision that people are going to have to make and they should take a long, hard stare at whether or not this is the sort of question they want to be asking their employees and whether or not it provides value in the workplace.”
With the introduction of legal recreational cannabis in Missouri, many corporate executives and general counsels are working to reevaluate what kinds of policies to have regarding personal use of the once-prohibited substance by those they employ or indeed whether it is a good idea to have any policy on worker interactions with weed in their private lives at all.
Passed by voters in November, Amendment 3 allows adults 21 and older to possess the previously banned drug which went on sale for recreational consumption at Missouri dispensaries in February. Medical use of cannabis has been legal in the Show Me State since 2018.
Wesselschmidt, who handles an array of employment issues in his practice, said that employers may want to think about their guidelines carefully.
“Ask yourself ‘How much do I want to be involved in peeking into this employee’s personal life?’” he said. “If you don’t observe any sort of performance impact at work, to what extent is it relevant to this person’s job responsibilities?”
That’s especially true since Amendment 3 didn’t just make recreational pot legal. It also extended employment protections to those using the drug for medical purposes. Jeffrey Wax, an attorney at AEGIS Law in St. Louis County, noted that patients and caregivers can no longer be discriminated against by employers solely for being medical marijuana cardholders.
“I know a lot of focus has been on the adult use legalization that took place,” he said, “but there are a lot of changes on the medical use components too.”
Still, there are a lot of exceptions as well. Even with cardholders, a business can ban being under the influence on the premises and medical cannabis users are not entitled to protection if the employer can show their ability to carry out job-related responsibilities is affected or safety and occupational qualifications are an issue.
However, Wax, who now practices business, real estate and cannabis law, said questions remain. How does one define being under the influence? When is a responsibility job-related and how does one decide when that responsibility is being affected? Moreover, how do you test for all of this?
“Are you going to have workplace safety monitors?” he asked. “Are you going to have people who know how to conduct field sobriety tests?”
That question is complicated since marijuana tests are very different from those designed to detect alcohol. The latter give a precise blood alcohol reading that can determine an immediate level of inebriation. By contrast, marijuana tests can detect the substance days or weeks past the last use, well after any intoxicating effects have worn off. That means testing a medical cardholder is likely to yield a positive result though not necessarily provide solid grounds for dismissal since it doesn’t prove they were impaired on the job.
That can set up some interesting legal scenarios should a workplace incident or crash in a company vehicle occur.
“If you are testing with alcohol, you would have a more ready idea of whether that was a factor in the accident,” Wesselschmidt said. “If it was cannabis that was at issue, you might not know if it was the day of, the day before, two weeks before. That’s the tricky part of it.”
Wax said that clear written job descriptions and handbook policies can help clarify the problem.
“I think one thing employers can do to protect themselves is to try and be very clear about what job responsibilities are and what the qualifications for certain jobs are,” he said. “You want to have that paper trail in writing that is there from the outset.”
Wesselschmidt recommends robust documentation in regard to employee behavior and performance as well. Having a file full of supervisor reports showing lateness, lethargic demeanor or other signs of impairment can protect an employer from the charge that they are simply dumping an employee for cardholder status.
“There is a whole list of factors that you can put on a report to buttress the fact that we believe there was a reasonable suspicion that this person was under the influence of a drug at work,” Wesselschmidt said.
Jeremy Brenner, an employment attorney and partner at Armstrong Teasdale agrees and says that a positive test for a cardholder is no longer grounds for dismissal without other evidence that the worker was impaired on the job.
Still, he notes that protections only apply to medical marijuana users. Employers can have a “zero-tolerance” policy, and even terminate workers for recreational use or refuse to hire such candidates in the first place.
However, banning recreational consumers altogether – while legal – may create its own set of staffing headaches with labor already in short supply and more potential workers experimenting with widely available weed.
“Depending on the industry you are in, depending on your workforce, that policy is lawful but may become practically problematic,” Brenner said.
Brenner said the quandary is made even more complex by Amendment 3’s provisions for clearing many previous convictions linked to cannabis. That process will not be immediate.
“It is also going to take some time for those expungements to trickle into commercially obtainable background checks,” he said. “So what I’ve been telling employers is that when you see in a background check for a Missouri employee that they have a misdemeanor or a non-violent felony marijuana-related criminal record, just move on from that.”
Applicants are no longer required to disclose the existence of those criminal offenses.
“My recommendation is don’t even go there,” Brenner said.
Wesselschmidt notes that an interviewer can broach the subject of marijuana use but he or she must be careful. Not only could cardholder status make the discussion risky but one could even run afoul of ADA provisions under federal law.
“Status as a recovering addict is a disability that’s covered,” he said.
A safer idea might be a more outcome-oriented approach.
“It might be best to require the employee to acknowledge that we have a drug-free workplace policy and acknowledge that as a requirement of this job,” Wesselschmidt said. “That’s a much less invasive way to address it.”
Lilian Davis, a shareholder at Polsinelli, concurs, noting that questions about drug use – and especially convictions – can create potential problems.
“It raises potential issues and does a general counsel want to be in that gray area?” she said. “Does the company want to be in that gray area?”
Davis urges employers to think carefully about the nature of their field and the job in question so as to tailor application questions and requirements based on relevant factors.
“To have blanket applications across all companies, across all industries really isn’t prudent,” she said, “because you really have to curate your applications and processes to make sense with what your employees are actually doing, what services and products you are providing.”
However, there is still one elephant in the room.
“Missouri Amendment 3 doesn’t trump federal law,” Davis said.
The mismatch between the U.S. government’s continued prohibition of cannabis and the increasingly permissive regulatory environment in many states could lead to strange conflicts. For instance, those who do business with the federal government may find that Washington’s zero-tolerance policy could require the removal of an employee with a medical marijuana card while Missouri’s law protects the very same employee from termination.
Wesselschmidt said that, so far, the White House has not been eager to push such issues.
“The Biden Administration has shown a willingness to back off of these sorts of cannabis things from a federal contracting perspective,” he noted.
Regardless, Brenner thinks that an expanding marijuana user base in the state may mean that Missouri employers – and their general counsels – could see these matters popping up more and more often.
“I don’t think we’re seeing the breadth of how common it is going to become,” he said.