Marijuana Legalization Doesn’t Necessarily
Mean Chaos for Small Businesses

As dispensaries for recreational marijuana wil soon open in Missouri, most adults over 21 can possess up to three ounces of cannabis without penalty. Although medical marijuana has been legal since 2018, this year’s change has caused concern among small businesses who worry employees will rapidly become unmanageable and no recourse exists.

That’s simply not true. Business owners, and especially small business owners and managers, should read on.

Missouri’s constitutional amendment passed in November 2022, does not allow for the use of marijuana in the workplace. It also does not require an employer to permit or accommodate marijuana use during work hours, or on company property.

Details

There are some catches. Businesses may not discriminate in hiring, termination or any term or condition of employment, and that includes if the employee used marijuana off the businesses’ property during nonwork hours. However, a business can refuse to hire an applicant, and may discipline, terminate, or otherwise act against an existing employee, if he or she is working while under the influence of marijuana. That’s true even if the applicant or worker has a valid qualifying medical marijuana patient identification card.

The amendment legalizing recreational marijuana specifies five situations in which an employer may take adverse action:

• If the laborer tests positive for marijuana components or metabolites, and used, possessed or was under the influence of medical marijuana on the employment premises or during work hours.

• If the legal use of a lawful marijuana product affects the safety of others in any manner.

• If the use affects the ability to perform job-related duties in any manner.

• If the use conflicted with a legitimate qualification that is reasonably related to the employee’s employment.

• If the company would lose a monetary or licensing-related benefit under federal law due to an applicant or employee using a lawful marijuana product, since marijuana is illegal under federal law.

Yes, But…

There are several qualifications to all of this. For instance, employers may still test but with caution. The new law prohibits employers from making employment decisions based upon a positive drug test for qualifying medical marijuana patients if their positive test was due to lawful consumption off the employer’s premises and not during work. Therefore, drug testing for qualified patients may not be a basis to deny employment or take employment actions, unless the business or position meets one of the exemptions listed above. If you intend to use one of the exemptions to continue your current drug testing practices, it is best to consult with your legal counsel before doing so. Businesses should not assume anything.

All of this is a general overview of an evolving environment, and you are urged to conduct more research before acting. However, even this outline shows that small businesses have considerable room for action and don’t need to tolerate a wild west environment.