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ST. LOUIS – As marijuana legalization campaigners celebrate a victory in their battle against the recreational drug, Missouri business owners are calling their lawyers.
Local employers, schools, financial institutions and health care providers faced pressure from lawyers and interviews last week, following the passage of Amendment 3. Employers were left to consider : What do they want — or want — to know about their employees’ after-hours cannabis use?
“We have a lot of questions,” said Jeremy Brenner, a partner at Armstrong Teasdale in Clayton who focuses on employment law.
The full legalization of marijuana in Missouri, one of 21 states across the United States to do so, is part of a cultural change in the country that employers must address. Some district attorneys said consumers have been asking in recent days, and for months before the election, if employees smoke on the job, if employers should stop smoking cigarettes. new employees for pot, and whether managers can fire employees for using marijuana, among other questions.
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The recently passed amendment allows anyone 21 or older to buy up to 3 ounces of dry pot per day, excluding food and other products.
Many workplace drug policies will not change. Drug policies for federal contractors or transportation workers, for example — including Schnucks grocery store drivers and Spire gas workers — are set by federal law. And of course, the attorneys said, employees can’t use marijuana in the workplace or get high performance.
“I think it’s important for employers to understand,” Brenner said. “This does not mean that you have to accept employees who are under the influence of marijuana at work or in your time.”
But the amendment raises other questions for employers, who don’t want to be accused of firing or punishing workers for reasons that are legally questionable.
Workplace drug testing began in the 1980s, after President Ronald Reagan mandated it for government employees. Public and private employers now test workers – sometimes for new hires, sometimes not, and sometimes after workplace injuries. Drug testing is common in industries with safety-related activities, such as construction, manufacturing, health care and energy. Since 1991 they have been certified by the government for air, rail, truck and other transportation workers.
Last year, the New Jersey testing company Quest Diagnostics reported that in more than 6 million urine tests among American workers, the positive rate for the drug was 4.1% of the people tested. before the job. The rate was 6.7% for those tested after a workplace accident.
Drug testing has declined over the past five years, said Keith Ward, Quest’s vice president of employer solutions. And amid labor shortages in recent years, some employers have cut back on exams to speed up hiring, especially in large-scale industries like hospitality and service. food.
“They need to hire someone today,” Ward said. “There is no time to wait 24 hours to return a drug test. … And we’ve seen the impact from that in some industries.”
But the drug is still included in 80% to 90% of drug test ads, Ward said.
California became the first state to legalize medical marijuana in 1996. Colorado and Washington became the first to legalize recreational marijuana use in 2012.
Over the years, new laws have not included protections for marijuana use outside of work, said Marcia McCormick, professor and co-director of the Wefel Center for Employment Law at the University of St.
“It quickly became clear that states had to start thinking about this,” McCormick said. “Because people thought that if they had a prescription drug card, they couldn’t be fired for their drug use outside of work. And that turned out to be untrue, in many countries.
Some laws now have similar language, McCormick said, including Connecticut, Montana, Nevada, New Jersey and Rhode Island. But all laws are different, he said, so there is no universally applicable standard.
Missouri’s amendment says employers can still fire or discipline employees who use pot in the workplace or come to work at high altitude. Employers cannot punish employees, in most cases, for using marijuana during non-working hours if they have a medical card, and the use does not affect their ability to work. But the amendment does not say whether employers can fire or discipline an employee who uses marijuana for recreational purposes on their own time.
That gap in language leaves some “a lot of confusion,” McCormick said.
For example, the amendment does not define “under the influence,” said Chuck Poplstein, who chairs the practice and practice group at Thompson Coburn.
“You can come up with all kinds of arguments,” Poplstein said. “Courts may have to give instructions.”
Testing for drug use is not the same as testing for other substances. There is no legal standard for impairment, said Ward, of Quest Diagnostics. Oral saliva tests can detect drug use in the previous 24 to 36 hours, approximately. For urine tests, the timeline is three days, and the hair test detects use within the past 90 days.
Beyond that, lawyers said there are still many open questions. For example, the amendment states that protections do not apply to employees with prescription drug cards because the “unlawful use of an illegal drug product” could affect their ability to perform their job duties.
“What does that mean?” said Brittany Falkowski, a partner in the practice and practice group at Husch Blackwell.
For unionized workers, some of these ambiguities are challenged during contract negotiations.
Lenny Jones, state director for SEIU Healthcare Missouri, said the amendment would give the union more power to push recreational drug use in the same way as medical drug use. “There’s more room for marketing,” Jones said.
Some employers don’t even care if applicants pass a drug test, says Charles Jellinek, a partner and leader of the employment and employment practice at Bryan Cave Leighton Paisner.
The change in the amendment may be considered a “public policy consideration” in the government, he continued. “Is it really a big deal if someone has had a license before or if someone is a recreational user?” Jellinek said some employers will ask.
But don’t expect much change.
“Look, the law is still the law,” Jellinek said. “I think, you still have some employers out there who say, ‘I don’t want someone working in my workplace who violates federal law.'”
Bryce Gray of the Post-Dispatch contributed to this report.
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