On November 6, 2018, Missouri voters overwhelmingly approved a constitutional amendment (“Amendment 2”) to legalize medical marijuana. Approved by a wide margin (66% in favor, 34% opposed), Amendment 2 succeeded over two other ballot initiatives. Amendment 2 will implement a 4% marijuana sales tax and is projected to generate $14 million to fund veterans’ healthcare throughout the state as well as $6 million for local governments through taxation and fees.
Amendment 2 was certified and became law on December 6, 2018, but due to logistical concerns it will take several months to finalize. Regulations are expected to be finalized by June 6, 2019, and medical marijuana cards may be issued within 6 months.
Missouri will now be among 33 states (plus Washington D.C.) that permit medical marijuana usage – 10 of these states also permit adult, recreational marijuana usage. Interestingly, this is not Missouri’s first foray into legalizing marijuana-related products. In 2014, Missouri legalized the use and production of CBD oil for use in treating patients suffering from a variety of conditions such as epileptic seizures.
While it is generally known that marijuana use for any purpose is prohibited under federal law, the landscape is not quite as clear as is generally perceived. On January 4, 2018, former Attorney General Jeff Sessions issued a memo walking back the previous administration’s position of deemphasizing marijuana criminal prosecutions. However, the pro-marijuana lobby has made significant strides in other areas. The States Act continues to gain bipartisan support and was nearly attached as an amendment to the First Step Act criminal justice reform passed by Congress last week. The States Act would permit marijuana related business entities access to financial institutions – a significant hurdle to alleviate the risks of “cash-only” businesses that has plagued the industry. Perhaps more importantly, the 2018 Farm Bill legalizes the cultivation and production of hemp products across the country. While the 2014 Farm Bill previously permitted hemp growth under a pilot program, the 2018 Bill provides widespread approval and, most importantly, allows farmers access to crop insurance for hemp cultivation.
It is within this rapidly changing framework that Missouri employers must navigate to ensure they are operating within the confines of the law.
Under the Drug Free Workplace Act, federal contractors must maintain a workplace free of illegal drug use by creating a drug-free awareness program, reporting employees’ drug convictions to the federal government, and appropriately disciplining employees for drug convictions. Missouri’s medical marijuana status will not supersede any requirements for federal contractors under the Drug Free Workplace Act.
Missouri employers’ obligations under the Americans with Disabilities Act (“ADA”) are a little more convoluted. The ADA does not consider individuals who currently use illegal drugs to be qualified disabled individuals entitled to a reasonable accommodation. However, some states (Alaska, Arizona, Connecticut, Illinois, Rhode Island, Pennsylvania, Delaware, Minnesota and Nevada) have specific carve-outs in their medical marijuana statutes that prohibit discrimination based on prescribed use. Many courts in these states have held that medical marijuana discrimination claims are actionable because of these carve-out provisions. This presents an interesting contrast to the first states to legalize medical marijuana (Colorado, California and Oregon) whose courts have held that such claims are not actionable. Missouri’s medical marijuana statute does not have an anti-discrimination carve-out, but we will have to wait and see how courts here interpret medical marijuana discrimination claims under the ADA and Missouri Human Rights Act.
In anticipation of Missouri’s medical marijuana law enactment, employers should review their drug-free workplace and drug testing policies to ensure they are effective and enforceable. While drastic policy changes are not necessary now, it is a good opportunity to ensure that they are in line with a Company’s approach. Employers should not hesitate to present employees with clear expectations of their drug-related policies to circumnavigate any potential issues when they are presented with their first medical marijuana related issue.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.