On November 8, 2022, Missouri voters will have the chance to legalize recreational marijuana. The proposed state constitutional amendment, dubbed Amendment 3, would revise and amend the existing provisions regarding the legalization of marijuana for medical purposes, as well as allow individuals aged twenty-one years old and older to legally possess, purchase, consume, and cultivate marijuana recreationally. If approved by voters, the measure would become effective before year’s end, on December 8, 2022. Just four years ago, nearly two-thirds of Missouri voters voted to legalize medical marijuana, and current polling indicates that similar support exists for legalizing recreational marijuana.
If Amendment 3 is approved, the new provision would not prevent employers from enforcing their drug and alcohol-free workplace policies, nor would it require employers to permit employees to be under the influence of marijuana while at work. Amendment 3 also would not prevent employers from continuing to test for marijuana impairment, under certain circumstances. Similarly, employers would not be subject to any liability for disciplining or discharging an employee for working or attempting to work while under the influence of marijuana.
However, Amendment 3 would add a provision preventing an employer from discriminating against an employee with a medical marijuana identification card because he or she: (1) possesses a medical marijuana identification card (whether for the employee or someone in the employee’s care); (2) lawfully uses marijuana off the employer’s premises during nonworking hours; or (3) tests positive for marijuana unless the employee used, possessed, or was under the influence of marijuana while working. Currently, Missouri law does not provide such protections for holders of medical marijuana identification cards. An employer would still be allowed to take action against an employee whose lawful use of marijuana off the employer’s premises and during nonworking hours hinders the employee’s ability to perform job-related responsibilities, affects the safety of others, or conflicts with an occupational qualification.
Notably, Amendment 3 does not include a comparable provision protecting recreational marijuana users’ right to consume marijuana products, even where such use occurs off the employer’s premises during nonworking hours. By comparison, Missouri employers are prohibited from discriminating against employees for their off-duty use of alcohol or tobacco. Because Amendment 3 would not extend that prohibition to recreational marijuana use, employers would retain the right to take adverse employment actions against employees for their recreational, off-duty consumption of marijuana.
While Amendment 3’s passage may decriminalize the recreational use and possession of marijuana, the immediate impact on Missouri employers remains to be seen. Indeed, even if Amendment 3 passes, Missouri employers would retain the right to prohibit the use of alcohol and drugs at the workplace or during work hours, and to prohibit employees from being under the influence of marijuana while at work. Missouri employers would also be allowed to take adverse employment actions against employees who engage in recreational, off-duty consumption of marijuana. However, Amendment 3 would afford holders of medical marijuana cards additional protections against discrimination. In preparation for December 8, 2022, should Amendment 3 be adopted, employers may want to revisit all workplace drug policies to ensure compliance with federal, state, and local laws.
Ogletree Deakins will continue to monitor developments with respect to marijuana legalization initiatives and will post updates on the Drug Testing and State Developments blogs as additional information becomes available. In addition, further information on federal, state, and major marijuana laws and guidance on compliance with the same is available via the firm’s OD Comply: Marijuana subscription materials, which are updated and provided to OD Comply subscribers as the law changes. Important information for employers is also available via the firm’s webinar and podcast programs.