By: Shane Rader
Missouri voters recently approved an amendment to the state’s constitution legalizing the use of medical marijuana. The amendment became effective on December 6, 2018, and marijuana may be distributed as early as Spring of 2020. What is unique about the Missouri amendment, compared to neighboring states like Arkansas and Oklahoma, is that it remains silent as to whether employers can discriminate against an employee based on their medical marijuana use.
The Missouri Department of Health and Senior Services, which is charged with issuing the amendment’s clarifying regulations, has yet to issue any guidance on this issue. For now, employers can only be certain of what little guidance the constitutional amendment itself offers.[1]. The only mention of employment concerns in the amendment is a safe harbor provision allowing employers to discipline employees—up to and including termination—for marijuana use or intoxication while at work. This lack of guidance is atypical, as most states have a provision expressly prohibiting discrimination for an employee’s use of medical marijuana. Some states have made specific carveouts, which specify certain situations where discrimination is acceptable. For example, a common carveout, as seen in Arkansas and Oklahoma, is the “safety sensitive” designation which allows employers to discriminate for positions that meet certain criteria.
There are two ways that the discrimination issue could be clarified in Missouri. One is for the Missouri Department of Health and Senior Services to issue regulations clarifying when, if ever, discrimination based on an employee’s use of medical marijuana is permissible. The alternative is to litigate and settle this issue in state courts. At this time there is no way for Missourians to know who will make the decision, let alone what their decision will be. However, if this issue gets litigated, there are several other states that have already dealt with medical marijuana laws that are silent on this issue. California, one of the first states to consider this question, held that nothing in the text or history of the state’s medical marijuana law suggested that voters intended the measure to address the respective rights and duties of employers and employees.[2] The California Supreme Court reasoned that because the law did not contemplate the effects on employment law, employers were presumably still allowed to discriminate for medical marijuana use. Although many other states took the same position, Massachusetts managed to reach the opposite conclusion. That state’s supreme court used broad language, designed to protect patients from criminal prosecution, to justify its position that the legislature intended for discrimination by employers to be prohibited.[3] Language identical to what the Massachusetts’ Supreme Judicial Court relied on does not appear in Missouri’s amendment, but there is still the possibility that Missouri courts could lean on other broad aspects of the amendment to reach the same conclusion.
After passage of the state’s constitutional amendment, many Missourians are likely under the impression that there will be no negative repercussions for using medical marijuana. Although it may be true that there are no criminal repercussions under state law for this drug use, such an impression is dangerously misinformed. At the moment, employers are free to take the position that they will discriminate against these employees by disciplining, terminating, or refusing to hire them, even if the employee is a medical marijuana card holder that is not under the influence of the drug while at work. Until this issue is clarified, employees should proceed with extreme caution and inquire about workplace policies well in advance of using medical marijuana.
[1] See, Mo. Const. art. XIV, § 1
[2] Ross v. RagingWire Telecommunications, Inc., 42 Cal. 4th 920 (2008).
[3] Barbuto v. Advantage Sales and Marketing, LLC, 477 Mass. 456 (2017).