As the state begins its jog toward implementing rules governing medical marijuana, much of the business community remains in a holding pattern.
Over the next year, the Missouri Department of Health and Senior Services will begin crafting rules governing medical marijuana usage and issuing licenses to businesses that want to grow and dispense medical marijuana.
Still, as the medical marijuana industry begins to grow, area businesses are watching cautiously to see what effect medical marijuana will have on their businesses and their relationship with employees who may use medical marijuana.
Last November, 65 percent of Missouri voters approved Missouri Amendment 2, which legalized the use of medical marijuana to treat 10 debilitating and chronic conditions. Proponents of medical marijuana hailed the effort as a common-sense way to ensure patient access to medical marijuana.
Jack Cardetti, a spokesman for Missouri medical cannabis trade association MoCannTrade, also served as the spokesman for New Approach Missouri, which led the Amendment 2 campaign. Cardetti said the ballot initiative was written to ensure patient access to medicine, but it does not ensure patients’ rights to use medical marijuana.
“Amendment 2 is a common sense way of making Missouri the 32nd state that allows for medical marijuana,” Cardetti said. “A lot of the issues for employment and other things can be changed over the years.”
Still, the law offers limited protections for employees seeking to use the substance for medical purposes.
Gregory Groves, a Missouri State University professor and lawyer at Springfield law firm Lowther Johnson, which specializes in employment law, said Amendment 2 provided only vague guidance.
Chapter 7, Section 1 of the ballot initiative explicitly prohibits employees from retaliating against employers who terminate them for being under the influence of marijuana at work. Employees could use the substance as long as they are not under the influence at work, Groves said.
“It doesn’t say what happens if they merely test positive,” he said. “Based on what I’m seeing across the land, I think the courts are going to say merely having it in your system is not enough to terminate an employee.”
Still, the law does have its limitations.
Kris Scheperle, who owns All Seasons Landscaping in Jefferson City, expressed some concern that his employees with commercial drivers licenses (CDL) may be able to use medical marijuana. But he said laws governing CDLs should protect employers.
“If (the employee) were to get in a wreck, you would have grounds to dismiss them if they had marijuana in their system or alcohol,” said Scheperle, who is also Cole County Western District commissioner.
The ballot initiative forbids people from operating vehicles, aircraft, motorboats or a “dangerous device” while under the influence of marijuana. Again, Groves said the law will be determined by courts on a case-by-case basis, because the wording of the law gives employees the ability to use marijuana outside of work.
In other states where marijuana is legalized for medical or recreational use, authorities use common alcohol sobriety tests. The California Highway Patrol observes odors on the breaths of drivers, asks drivers to walk in straight lines and subjects drivers suspected of driving under the influence to urine or blood tests, according to Bakersfield, California, CBS affiliate KBAK.
Entrepreneurs are racing to create marijuana breathalyzers similar to alcohol breathalyzers. No reliable sobriety tests exist that can be used in court, but if intoxication can be determined, employees lose all protections, Groves said.
“If they’re under the influence, the employee is never protected,” he said.
Conflicting laws
After November’s election, marijuana is now legal in 33 states and the District of Columbia for medicinal use. Business groups around Jefferson City said employers will need to make sense of a web of conflicting state and federal laws about marijuana.
Under the Drug Free Workplace Act of 1988, federal contractors must maintain a workplace free of illegal drugs, require employees to sign pledges stating they will not use drugs and report any drug convictions against employees to the federal government.
“If you are currently abiding by the Drug Free Workplace Act as a federal contractor, this Missouri medical marijuana law doesn’t change that,” John Marino, a lawyer at St. Louis law firm McMahon Berger, said in a Missouri Chamber of Commerce webinar.
Amendment 2 allows patients to seek access to medical marijuana to treat 10 qualifying conditions or diseases including cancer, epilepsy, glaucoma, severe migraines, HIV or other psychiatric disorders.
The Americans with Disabilities Act of 1990 forbids discriminating against employees because of disabilities. Still, the ADA also states employees who use drugs illegal under federal law do not receive protections under the law.
Early medical marijuana adopters like California and Oregon held that the ADA did not protect medical marijuana use, Marino said. Late adopters like New York, Alaska and Connecticut carved out protections in their laws that protect ADA patients’ right to use medical marijuana.
Health care providers and caregivers receive several protections from penalties under state and federal law under Amendment 2, but no protections extend specifically to disabled patients who want to use medical marijuana.
Jefferson City-based Central Bancompany employs more than 2,500 people in Missouri, Kansas, Illinois and Oklahoma. Illinois legalized medicinal marijuana in 2013. Oklahoma did so in June.
Christine Ellinger, Central Bank senior vice president of human resources, said the bank does not try to bar qualifying patients who work at Central Bank from using marijuana obtained legally in states with medical marijuana laws. Employees seeking to use marijuana to treat conditions must first discuss their request with their supervisors, Ellinger said.
“We will have an interactive discussion with the individual about the request for accommodation and consider other reasonable accommodations available to perform the essential functions of the job,” Ellinger said in an email.
Employers must make accommodations under the ADA for employees to treat medical conditions, she said. Still, Central Bank has a drug-free workplace policy that states employees cannot use, solicit or buy controlled substances or alcohol while on bank property or while representing the bank.
Employees who need to use marijuana to treat serious medical conditions can take leaves of up to 12 weeks under the Family Medical Leave Act of 1993, Ellinger said.
“Employers should have and enforce a drug-free workplace policy,” she said in an email. “Many, if not all jobs, require full attention to essential job functions.”
Again, Groves said impairment will likely determine whether the ADA protects employees.
“If you have a disability and are not under the influence, then I think you’re probably going to be protected,” Groves said.
Further guidance
The Missouri Department of Health and Senior Services will finalize all rules governing the state’s medical marijuana program June 4.
C&S Business Services owner Paula Benne said she wants more guidance from the state over the next several months before she forms a policy for her company.
“I am preparing now, but I just have to get more educated on how it’s going to affect everything,” Benne said. “If they don’t know how it’s going to be handled, processed, delivered, then I’m not knowing how to handle it myself.”
Court rulings on medical marijuana cases are all over the map, with some courts siding with employees and others siding with employers. Generally in states that passed medical marijuana laws recently, courts side with employees, Groves said.
As in other states that passed medical and recreational marijuana laws, state courts will ultimately resolve disputes. Because Missouri legalized marijuana for only medical use, he said, the number of disputes will be smaller than most people think.
“Most of your employees are not going to be on medical marijuana,” Groves said. “Most doctors are not going to just write a prescription for somebody that wants to do recreational marijuana and give it to them under a medical marijuana excuse.”