Pondering Policy: Employers need to evaluate workplace safety regarding marijuana, officials say

Karen Shannon: Employers should develop a marijuana impairment checklist.

Chip Sheppard: Random testing for marijuana is worthless in most instances.

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As recreational marijuana sales are expected to begin statewide next month, legal and human resources officials say the clock is ticking for employers to ensure their workplace policies are up to date.

Missouri voters approved Amendment 3 in November to legalize personal use of marijuana by adults 21 and older. According to state officials, the retail sales tax of 6% for recreational marijuana products is expected to generate annual revenue of at least $40.8 million. The city of Springfield is not considering an optional 3% local sales tax at this time, according to city officials.

Dispensaries, cultivation and manufacturing licensees are applying for a comprehensive license to sell both medical and recreational weed – a process in which the state has until Feb. 6 to approve the applications under the Missouri Constitution.

In the meantime, Missouri employers should be reviewing, if not changing, workplace policies related to recreational marijuana, said Karen Shannon, vice president of business consulting at Ollis/Akers/Arney. She said she’s frequently heard over the past few months from clients of the insurance and business advisory firm seeking guidance on what actions they should take in their offices.

“The majority of the phone calls are how do we get prepared, what do we need to be changing and what do we need to do to be proactive,” she said. “Questions I get are from very small, family-owned businesses to large corporate entities. Size and industry is really not indicative of the need to plan and prepare.”

Shannon recommended employers first look at their drug testing policies and practices as part of the hiring process. They may want to no longer include marijuana since it’s now lawful in the state. However, on the federal level, the drug remains illegal.

“Post-offer, preemployment is primarily looking for unlawful drugs,” she said, adding alcohol is primarily tested when there is reasonable suspicion.

Chip Sheppard, an attorney with Carnahan Evans PC, which has a marijuana and hemp law group as part of the firm, said he frequently is asked by employers about random testing for marijuana.

“Unless it’s a safety position or the employer is going to lose some sort of a federal contract or federal benefit, random testing for marijuana is as worthless as random testing for alcohol,” he said.

Urine drug tests can detect THC for 30-45 days for frequent marijuana users and 1-7 days for light consumers, according to online cannabis marketplace and information resource Leafly.

Shannon said companies also should look to revise employee handbooks and drug testing policies in relation to reasonable suspicion of an employee believed to be impaired in the workplace.

When employers inquire about changes they should make in response to Amendment 3, Sheppard said his advice is to treat recreational marijuana like alcohol.

“People can’t show up to work under the influence of alcohol, and they still can’t show up to work under the influence of cannabis either, or any other prescription drug if it’s going to affect your ability to do your job,” he said.

Employee rights
With the passage of Amendment 3, only medical marijuana users with a valid identification card have employment protections, with certain exceptions – a change from 2018, when medical cannabis was legalized statewide.

The new law specifies that employers can’t make employment related decisions or discriminate against a person based upon their status as a qualifying patient or primary caregiver who has a valid ID card. There were over 204,000 medical marijuana patients in the state as of December, according to Missouri Department of Health and Senior Services data.

“It would be a mistake if an employer decided to discriminate against an employee because they are a medical marijuana user,” Sheppard said. “They are now going to have some rights under state law that would make that discrimination unlawful.”

The change doesn’t mean employees with medical cards have more freedom with their marijuana usage, he added.

“There’s nothing in the constitution that gives you the right to take it to work, use it at work or to be under the influence of it at work,” Sheppard said.

The protections do not apply to employers who would otherwise lose a monetary or license-related benefit under federal law.

“Medical card protections don’t apply to an employee who’s in a position in which the use of marijuana may affect their ability to perform their job or affect the safety of others,” Sheppard said.

Safety navigation
Construction and health care are among industries that have employees in specialized positions involving safety.

While CoxHealth officials declined an interview request for this story, a spokesperson released a statement regarding adult-use marijuana by its workforce on the health system’s campuses.

“CoxHealth is a drug-free workplace, and we prohibit our employees from working impaired due to drug or alcohol use,” the statement reads. “We realize with the recent legalization of recreational marijuana in Missouri, employees now have the option to consume marijuana legally. However, our drug-free workplace policy remains unchanged. Employees who are impaired at work may still be subject to disciplinary action.

“We are actively working through more detailed policies that address various employee situations that could occur post-legalization.”

Greg Davey, labor and employment relations vice president with Kansas City-based The Builders’ Association, a statewide nonprofit commercial construction trade group, said many positions in the construction industry likely will fall within an exception to Amendment 3’s employment protections for medical marijuana users, due to the inherent safety risks of most jobs.

“Our members include general contractors, subcontractors, suppliers and service providers, and we strive to keep them informed of the latest employment law developments. In December, we distributed a bulletin to members regarding the impact of Amendment 3 on employers, with a focus on the construction industry,” Davey said via email, noting the organization has monitored the impact of medical marijuana legislation since its 2018 adoption.

One step Davey and Shannon both encourage employers to consider is training their HR professionals, managers and supervisors to objectively identify signs of marijuana impairment at work. Signs of marijuana use include loss of coordination, distorted perception and problems with memory, according to the U.S. Drug Enforcement Administration.

Ollis/Akers/Arney has developed an impairment checklist, Shannon said, adding other companies should do the same, along with ensuring their workplace safety policy is up to date.

“We don’t want people who are impaired, whether that’s by alcohol, misuse of prescription drugs or by the misuse of cannabis,” she said, noting employers still have the right to say what is appropriate in their workplace. “For most managers, it’s this impairment checklist that is going to be really critical for organizations to utilize.”