On November 8, 2022, Missourians voted to legalize recreational marijuana, adopting "Amendment 3," a proposal to amend the state Constitution. With this development, Missouri joins a growing number of states that have legalized recreational marijuana for adults 21 and older (although marijuana is still unlawful as a matter of federal law). Missouri previously legalized the use of marijuana for medical reasons by adopting Amendment 2 in 2018. Amendment 3 both legalizes the recreational use of marijuana and modifies the existing medical marijuana law, especially with respect to employment protections for medical marijuana users. The changes will go into effect on December 8, 2022.

Changes Related to Medical Marijuana. While the focus of Amendment 3 was the legalization of marijuana used recreationally, the changes related to the use of marijuana for medical reasons are significant for employers. In particular:

• New Employment Protections for Certain Medical Marijuana Users. The Amendment specifically prohibits discrimination against a person in hiring or any term or condition of employment if the discrimination is based on: (1) "[t]he person's status as a qualifying patient or primary caregiver who has a valid identification card, including the person's legal use of a lawful marijuana product off the employer's premises during nonworking hours"; or (2) "[a] positive drug test for marijuana components or metabolites of a person who has a valid qualifying patient identification card," unless the individual is excepted from coverage under an enumerated exception.
• Workplace Impairment/Possession Can Be Prohibited. Employers can continue to discipline or terminate an employee for using or possessing marijuana or being under the influence of marijuana on the premises of the place of employment or during the hours of employment.
• Federal Contract or Licensing Exceptions. Employers may continue to take adverse action against employees who are medical marijuana users if a failure to do so would cause an employer to lose a monetary or licensing-related benefit under federal law.
• Employment Protections Do Not Extend to Employees in Certain Positions. The Amendment specifically provides that the employment protections do not apply to "an employee in a position in which legal use of a lawful marijuana product affects in any manner a person's ability to perform job-related employment responsibilities or the safety of others, or conflicts with a bona fide occupational qualification that is reasonably related to the person's employment."
• Limitation on Private Right of Action Retained. Missouri's medical marijuana law states that employees may not sue employers for "wrongful discharge, discrimination, or any similar cause of action" if employers prohibit employees from working or attempting to work while under the influence of marijuana, or discipline them for doing so. The new Amendment did not modify this provision.

Legalization of Recreational Marijuana. The provisions of Amendment 3 authorizing the use of marijuana for recreational purposes permit an employer to discipline individuals who use marijuana for recreational purposes, including in the following circumstances:

• Workplace Use/Possession Can Be Prohibited. Employers may still prohibit marijuana use or possession in the workplace or on the employer's property.
• Workplace Impairment Can Be Prohibited. Employers may prohibit and take adverse action against employees for working while under the influence of marijuana.
• Impaired Driving Prohibited. Individuals are prohibited from operating any motor vehicle or other motorized form of transport while under the influence of marijuana.

Practical Guidelines for Employers

Employers should review their existing drug-free workplace policies and drug testing policies as they relate to the use and possession of marijuana, as well as to testing for marijuana, to ensure compliance with Amendment 3. This is especially true as to the changes related to medical marijuana. While federally mandated testing and marijuana prohibitions - including DOT marijuana use and testing rules - can and must continue, employers should review their federal contracts and funding requirements to determine how they impact compliance with Amendment 3's provisions. Employers are encouraged to remind their employees of any policy provisions related to the possession and use of marijuana in the workplace and working while under the influence of marijuana.

Posted: November 14, 2022

¹ For more on recent developments on fair chance laws, see, e.g., Michael Gotzler and Casey Kaiser, Wisconsin Supreme Court Eases the Burden for Employers Defending Arrest and Conviction Record Discrimination Claims Under State Law, Littler Insight (Mar. 11, 2022); Stephen A. Fuchs and Rod M. Fliegel, New Enforcement Guidance Issued for New York City Fair Chance Act as Key Amendments Take Effect, Littler Insight (July 19, 2021); Rod M. Fliegel and Garrick Chan, The Dust Hasn't Settled Yet: Employers Must Continue to Be Thoughtful About Criminal Record Screening Policies, Littler Insight (July 6, 2021); Neil Alexander and Shaylon Lovell, New Arizona Law Eases Restrictions for Obtaining Occupational Licenses for Those With Criminal Histories, Littler ASAP (May 10, 2021).