Missouri wrestles with future issues of legalized pot in the workplace

ST. LOUIS — While marijuana legalization proponents celebrated victory in their fight for recreational cannabis, Missouri business owners were phoning their lawyers.

Area manufacturers, schools, financial institutions and healthcare providers riddled lawyers with inquiries last week, in the wake of the passage of Amendment 3. Employers were left to ponder: What do they need — or want — to know about their employees' after-hours cannabis use?

"We had an immediate influx 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 U.S. to do so, is part of a cultural shift in the country that employers will have to adjust to. A handful of area lawyers said clients have asked in recent days, and for months leading up the vote, if employees could smoke on the job if employers should stop screening new hires for pot and if managers could still fire workers for marijuana use, among other inquiries.

The newly passed amendment will allow anyone 21 or older to purchase up to 3 ounces of dried pot per day, not including edibles and other products.

Many workplace drug policies won't change. Drug policies for federal contractors or transportation workers, for example — including Schnucks grocery store drivers and gas utility Spire workers — are determined by federal law. And to be sure, lawyers stressed, workers still cannot use marijuana in the workplace or come to work high.

"I think it's important for employers to understand," Brenner said. "This does not mean that you have to tolerate employees being under the influence of marijuana at work, or on your time."

But the amendment raises other questions for employers, who don't want to be accused of firing or disciplining workers for reasons that are now legally dubious.

Workplace drug testing took off in the 1980s after President Ronald Reagan mandated it for federal employees. Nowadays public and private sector employers test workers — sometimes for new hires, sometimes at random, and sometimes after workplace injuries. Drug tests are most common in industries with the tightest safety precautions, like manufacturing, construction, health care and energy. They have been federally mandated for air, rail, truck and other transportation workers since 1991.

Last year, the New Jersey-based testing company Quest Diagnostics reported that among more than 6 million urine tests among U.S. workers, the positivity rate for cannabis was 4.1% for people tested pre-employment. The rate was 6.7% for those tested after a workplace accident.

There has been some decrease in testing for cannabis specifically in the past five years or so, said Keith Ward, Quest's vice president of employer solutions. And during the labor shortages of the past few years, some employers have cut down on testing in order to speed up the hiring process, especially in high-turnover industries like hospitality and food service.

"They need to hire somebody today," Ward said. "They don't necessarily have time to wait 24 hours to get a drug test back. ... So we have seen an impact from that in some industries."

But cannabis is still included in 80% to 90% of drug testing panels, Ward said.

California became the first state to legalize medical marijuana in 1996. Colorado and Washington were the first to legalize recreational cannabis use in 2012.

Over the years, the new laws didn't include protections for off-duty marijuana use, said Marcia McCormick, professor and co-director of the Wefel Center for Employment Law at St. Louis University.

"It quickly became apparent that states needed to start thinking about this," McCormick said. "Because people had the impression that if they had a medical cannabis card, they couldn't be fired for their cannabis use off-duty. And that turned out to not be true, in many states."

Now there is such language in a handful of laws, McCormick said, including in Connecticut, Montana, Nevada, New Jersey and Rhode Island. But the laws are all very different, she said, so there is no widely used standard.

Missouri's amendment says employers can still fire or discipline any employee who uses pot in the workplace or comes to work high. Employers can't penalize workers, in most cases, for using marijuana during non-work hours if they have a medical card, and the use doesn't affect their ability to work. But the amendment does not address whether employers can fire or discipline an employee who uses marijuana for recreational purposes during their personal time.

That gap in the language leaves some "big ambiguity," McCormick said.

For instance, the amendment doesn't define "under the influence," noted Chuck Poplstein, who co-chairs the labor and employment group at Thompson Coburn.

"You could make all kinds of arguments," Poplstein said. "The courts will probably need to provide direction."

Testing for cannabis use is also not as clean-cut as testing for other substances. There is no legal standard for impairment, said Ward, of Quest Diagnostics. Oral fluid tests can detect cannabis use within the past 24 to 36 hours, roughly. For urine tests, the timeline is about three days, and hair testing can detect use in about the past 90 days.

Beyond that, attorneys said there are a number of other open questions. For instance, the amendment says the protection does not apply to employees with medical marijuana cards whose "legal use of a lawful marijuana product" affects their ability to perform job responsibilities.

"What does that mean?" said Brittany Falkowski, a partner in the labor and employment practice group at Husch Blackwell.

For workers who are represented by unions, some of these ambiguities will be hammered out during contract negotiations.

Lenny Jones, state director for SEIU Healthcare Missouri, said the amendment gives the union more latitude to push for recreational cannabis to be treated the same way as medical cannabis use. "There's more room for bargaining," Jones said.

Some employers may simply not care anymore whether candidates screen positive for cannabis, said Charles Jellinek, a partner and leader of employment and labor practice group at Bryan Cave Leighton Paisner.

The passage of the amendment might suggest a "new public policy sentiment" in the state, he continued. "Is it really that big of a deal if somebody had a prior conviction, or if somebody is a recreational user?" Jellinek said some employers may ask.

But don't expect widespread change.

"Look, it's still federally illegal," Jellinek said. "You will still have, I think, a handful of employers out there that are going to say, 'I just don't want anyone working in my workplace who's willfully flaunting a federal law.'"

Bryce Gray of the Post-Dispatch contributed to this report.

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