January 13, 2023


January 13, 2023

On November 8, 2022, Missourians joined the legalization of marijuana trend seen across the nation. A majority voted in favor of ballot measure Amendment 3, which amends the Missouri Constitution to:

  • Remove state prohibitions on purchasing, possessing, consuming, using, delivering, manufacturing, and selling marijuana for personal use for adults over the age of twenty-one;
  • Allows individuals to grow marijuana within prescribed limits; and
  • Allow persons with certain marijuana-related non-violent offenses to petition for release from incarceration, parole, probation, and have records expunged.

While legal sales of recreational marijuana are not expected to begin for several months, the provisions of Amendment 3 technically came into effect on December 28, 2022.  Naturally, many Missouri employers are curious about how Amendment 3 impacts their operations and current policies, including in the context of employment decisions, and in workers’ compensation.

Notably, Amendment 3 does not alter an employer’s ability to prohibit marijuana use as part of its drug-free workplace policy in certain scenarios.  For example, employers in Missouri still can refuse to hire, discharge, discipline, or take an adverse employment action against a person because that person was working while under the influence of recreational marijuana.  However, Amendment 3 now prevents an employer from discriminating against a person in hiring, termination, or penalizing a person if they test positive for marijuana but have valid documentation establishing a prescription for medical marijuana, so long as the positive test was due to lawful consumption off the employer’s premises and not during work.

In terms of workers’ compensation, the Missouri Workers’ Compensation Law does provide for penalties in the event an employee tests positive for drugs at the time of a work-related injury.  Specifically, Section 287.120.6 RSMo states:

  • Where the employee fails to obey any rule or policy adopted by the employer relating to a drug-free workplace or the use of alcohol or nonprescribed controlled drugs in the workplace, the compensation and death benefit provided for herein shall be reduced fifty percent if the injury was sustained in conjunction with the use of alcohol or nonprescribed controlled drugs.
  • If, however, the use of alcohol or nonprescribed controlled drugs in violation of the employer’s rule or policy is the proximate cause of the injury, then the benefits or compensation otherwise payable under this chapter for death or disability shall be forfeited.

Even as recreational marijuana use becomes legal in Missouri, the Missouri legislature manifested an intent to penalize workers’ compensation benefits in the event a workplace accident is sustained in conjunction with or as a result of the use of intoxicating substances (whether or not they are legal), as evidenced by the inclusion of alcohol in Section 287.120.6 RSMo.  Amendment 3 also does not alter an employer’s ability to test employees for marijuana use following a workplace accident.  Additionally, Section 287.120.6(4) RSMo provides for a rebuttable presumption that the workplace injury was sustained in conjunction with the use of a tested nonprescribed controlled drug if:

  • The initial testing was administered within twenty-four hours of the accident or injury;
  • Notice was given to the employee of the test results within fourteen calendar days of the insurer or group self-insurer receiving actual notice of the confirmatory test results;
  • The employee was given an opportunity to perform a second test upon the original sample; and
  • The initial or any subsequent testing that forms the basis of the presumption was confirmed by mass spectrometry using generally accepted medical or forensic testing procedures.

From a practical standpoint, because marijuana metabolites can persist in an individual’s system after the intoxicating effects of marijuana have ended, sustaining a drug penalty for marijuana use is often difficult.  Therefore, it is a stronger case if an employer can provide additional evidence of impairment at the time of a workplace injury (such as witness testimony of apparent intoxication) in conjunction with a positive drug test.

In light of the legalization of recreational marijuana in Missouri, employers should make sure drug testing policies comply with the new law, ensure supervisors are trained and capable of identifying impairment signs and procedures, and must clearly communicate any new drug policy changes to employees.  If you have any questions on this law and the potential impact on your business, please contact any attorney at Wiedner and McAuliffe by email or phone at 312-855-1105.