Attorneys field recreational marijuana questions from businesses

With recreational marijuana sales likely to begin next month, there are plenty of questions as to how it will change the landscape for Missouri businesses and their employees.

And just as workplaces are considering their next steps under the new law, business advocacy groups and attorneys are digging into the issue as well.

Possessing up to three ounces of marijuana has been legal in Missouri since December, a month after voters passed Amendment 3 legalizing adult use for recreational purposes.

Legal recreational sales are expected to begin next month as the state begins approving applications, many of which have been submitted by existing medicinal dispensaries. As the newly legal industry prepares to get off the ground, many businesses are hazy on how they might regulate its use in and around the workplace, if they can at all.

The Missouri Chamber of Commerce and Industry sought to answer some of those questions through a webinar it hosted Friday morning, partnering with Husch Blackwell attorneys Lowell Pearson and Courtney Steelman to take a deep-dive on the amendment itself and field concerns from member businesses.

"What we've been hearing from those employers from the business community en mass is that there are a lot of questions regarding the legalization of recreational marijuana in Missouri -- questions like, 'How will the new law affect workplace drug policies, can employers still test for marijuana impairment, are there different requirements for recreational and medical marijuana?'" Mehan said. "What we'd like to do is serve as a resource for you as you navigate through this."

The team answered several questions not explicitly spelled out in the ballot language, with one attendee asking whether employers could impose policies for remote workers in a different state.

Pearson said employers would likely retain the ability to impose their workplace policies on remote employees the same as the rest of their rule set, saying he didn't believe they would be required to accommodate marijuana use during work hours for those employees. Steelman noted the issue was complicated given that most neighboring states do not have legal recreational marijuana laws on the books.

"It's not too far removed from some of the other employment questions we've been getting generally as employees have become more and more remote," Steelman said. "Unfortunately, one of the drawbacks is that employers now have this burden when they enable their employees to be remote in different states; those employees are working in that state and availing themselves to the laws of that state. So there may be a little bit more you need to do on the back end to protect yourself. Be aware of what statutes apply to your workers, but it doesn't change the policies that you can have for your workforce."

Another attendee asked whether workers were obligated to disclose having a medical marijuana card.

"I don't love it. I think it's just because of how much it ties into medical inquiries, or rather how much we don't know this will tie into medical inquiries or not," Steelman said. "I think, as the law takes full effect and as employers are starting to deal with issues, things will start to highlight and show best practices for what we should do."

Pearson added: "I'd say don't ask for information that you're not going to do something with because having it creates certain obligations, including to keep it confidential. I can't say that that's illegal. I think it has a bit of a can of worms that, as an employer, you might not want opened."

The final question covered zero-tolerance policies in the workplace and how they could be reasonably enforced. Steelman said zero-tolerance policies were still permissible under the amendment, though those with a medical marijuana card would likely be protected by anti-discrimination provisions.

The team noted marijuana tests can't necessarily indicate when drug use occurred, and that employers would often have to monitor performance and behavior to make a determination on impairment. Pearson said policies were ultimately up to the business, though there were still protections in place for medical card holders who test positive.

"Amendment 3 says the employer doesn't have to accommodate use. It doesn't have to accommodate possession, and it doesn't have to accommodate impairment. But in the scenario we're talking about, we have a positive test, but no other evidence of impairment," Pearson said. "I think under that scenario, that person is protected under the anti-discrimination provision."

Mehan said the chamber and the Husch Blackwell team were collaborating on a comprehensive employers' guide to Amendment 3 that will go on sale in the near future. He said the guide would include answers to some of the questions addressed Friday along with other queries the team didn't have time to answer.

Prior guidance from the chamber noted employers are able to draft their own policies, that federal drug testing policies still applied and that jobs dealing with safety-sensitive tasks and heavy machinery were advised to retain or strengthen their existing policies.