February 02, 2024


February 02, 2024

On November 8, 2022, voters in Missouri approved Amendment 3, an amendment to the Missouri Constitution legalizing purchase, possession, and consumption of marijuana for adults aged 21 and over.  This development created some uncertainty for Missouri employers regarding how legal marijuana may impact their policies surrounding employment decisions and workers’ compensation.  Several bills currently being considered by the Missouri legislature may shed some light on this developing area of workers’ compensation.

Currently, Section 287.120.6 RSMo provides for a reduction of workers’ compensation benefits of 50% when the claimant fails to adhere to the employer’s drug-free/alcohol-free workplace policy and the claimant’s injury is sustained in conjunction with the use of alcohol or nonprescribed controlled drugs.  Further, this section provides for a total forfeiture of workers’ compensation benefits if the use of alcohol or nonprescribed controlled drugs in violation of the employer’s policy is the proximate cause of the claimant’s injury.

The issue now is whether marijuana qualifies as a “nonprescribed controlled drug” within the meaning of the statute, since it is now legal on the state level.  There is certainly an argument that marijuana would still qualify, since it remains federally illegal under the Controlled Substances Act.  However, SB935, introduced in the Missouri Senate in December 2023, seeks to dispel any ambiguity by amending Section 287.120 RSMo to include alcohol, nonprescribed controlled drugs, and marijuana.

HB 2135, introduced in the Missouri House of Representatives in January 2024, similarly adds the word marijuana to the provisions of Section 287.120 RSMo pertaining to drug/alcohol penalties. However, this bill also makes clear that these provisions are subject to the nondiscrimination provisions of Amendment 3, which prohibits an employer from penalizing an employee on the basis of a positive drug test for marijuana if the employee has a medical marijuana card, unless the employee used, possessed, or was under the influence of medical marijuana on the employer’s premises during the hours of employment. Further, this proposed bill would amend Section 287.140 RSMo to make clear that an employer is not required to pay for medical marijuana as a part of the claimant’s medical treatment for a work-related injury.

Further, HB 1990, introduced in December 2023, would also add the word marijuana to the provisions of Section 287.120 RSMo pertaining to drug/alcohol penalties, but would also add a separate provision reading, “any specific reference to marijuana or marijuana metabolites shall not apply to medical marijuana or metabolites related to medical marijuana that was legally prescribed by a licensed physician.” This added provision would exclude medical marijuana users from the drug/alcohol provisions of Section 287.120.6 RSMo.

The proposed bills discussed above are still being considered by the Missouri legislature and are not at this point law.  However, if passed, these bills would provide additional clarity for Missouri employers on how to enforce and maintain their drug-free workplace policies in the context of workers’ compensation.  We will continue to provide updates if and when this proposed legislation becomes law in Missouri.  For any other questions, please contact any attorney at Wiedner and McAuliffe by e-mail or phone at 312-855-1105.