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Amendment 3 was officially added to Missouri’s Constitution on Thursday, December 8, legalizing recreational marijuana for adults 21 years of age or older and simultaneously creating legal protections for people who hold medical marijuana cards and test positive for marijuana.  This amendment does not limit these protections exclusively to people who hold Missouri medical cards—it also recognizes qualifying medical cards from other states.

Under the language of Amendment 3, a positive test result alone is not sufficient proof that someone who holds a medical card was “under the influence” of marijuana.

Unless an exception applies, the holder of a valid medical card cannot be discriminated against in hiring, termination, or any other term or condition of employment, or otherwise penalized, if the only basis for the employer’s action is a positive drug test.

As indicated above, however, there are exceptions to such protections. According to Amendment 3, these protections do not apply if:

  1. The person in question used, possessed, or was under the influence of medical marijuana at their place of employment or on the employer’s premises.
  2. The person used, possessed, or was under the influence of medical marijuana during the hours of employment.
  3. The person’s legal use of marijuana would affect their ability to perform a job-related responsibility.
  4. The person’s legal use of marijuana would impact the safety of others.
  5. The person’s legal use of marijuana would conflict with a legitimate occupational qualification related to the person’s employment.
  6. The person used, possessed, or was under the influence of recreational marijuana without holding a valid, state-issued medical marijuana card.
  7. The employer would be subject to the loss of a monetary or licensing-related benefit under federal law if it did not act on positive test results.

In addition, Amendment 3 states that it “shall have no effect upon any valid contract” in place before December 9, 2022.  Because collective bargaining agreements (and other agreements between unions and employers) are contracts, Amendment 3 does not affect, or limit drug-testing policies contained in collective bargaining agreements that existed prior to December 9, 2022.

As with any new law, it will take considerable time for regulatory agencies and courts to interpret the scope of the protections outlined in Amendment 3.

Therefore, the safest path for employers moving forward should include:

  1. Reviewing existing collective bargaining agreements and other related documents to determine if there are binding policies that will remain in effect.
  2. Documenting the employee’s behaviors that led, following any marijuana-related drug testing, to the conclusion that they might be “under the influence” as part of the testing protocol.  (Note: This documentation should explicitly describe the employee’s behavior that supports the finding that the employee was under the influence).
  3. Identifying positions that fall within the exceptions.  (Note: Examples would include jobs governed by the United States Department of Transportation regulations, safety-sensitive positions whereby the employer can establish the need for a higher level of protection, and other similar positions.  These decisions should be made on a case-by-case basis.

Although the movement to legalize marijuana in Missouri has been underway for a while, the ink on Amendment 3 is still wet, and it will take substantial time to completely understand its implications. 

In the meantime, employers should review their policies and procedures to identify exempt positions. They should also systematize the gathering and retention of evidence related to the determination that employees subject to testing were “under the influence” at the time of such tests. In addition, employers should determine if their current policies and procedures require any necessary changes, bearing in mind that marijuana is still not a legal substance under federal law and, therefore, that marijuana use is not protected by or given a reasonable accommodation under the Americans with Disabilities Act of 1990.