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Legal pot raises questions about the future of workplace drug policies in Missouri

ST. LOUIS – As marijuana legalization advocates celebrated victory in their battle for recreational cannabis, Missouri business owners called their lawyers.

Area manufacturers, schools, financial institutions and healthcare providers peppered lawyers with inquiries last week in the wake of the passage of Amendment 3. Employers were left to ponder: What do they need – or want – to know about their employees’ after-hours use of cannabis?

“We had an immediate influx of questions,” said Jeremy Brenner, a partner at Armstrong Teasdale in Clayton who focuses on employment law.

The full legalization of marijuana in Missouri, one of 21 states across the US to do so, is part of a cultural shift in the country that employers will need to adapt to. A handful of area attorneys said clients had asked in recent days, and for months before the vote, whether employees could smoke on the job, whether employers should stop screening new hires for pot, and whether managers could still fire workers for marijuana use, among other inquiries.

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The just-passed amendment would allow anyone 21 or older to buy up to 3 ounces of dried pot per day, not including edibles and other products.

Many workplace drug policies will not change. Drug policies for, for example, federal contractors or transportation workers — including Schnucks grocery store managers and gas utility Spire workers — are determined by federal law. And to be sure, lawyers stressed, workers still can’t use marijuana in the workplace or come to work high.

“I think that’s important for employers to understand,” Brenner said. “This does not mean that you have to tolerate employees being under the influence of marijuana at work or on your time.”

But the amendment raises other questions for employers, who don’t want to be accused of firing or disciplining workers for reasons that are now legally questionable.

Workplace drug testing began in the 1980s, after President Ronald Reagan mandated it for federal employees. These days, public and private sector employers test workers – sometimes for new hires, sometimes randomly and sometimes after workplace injuries. Drug testing is most common in industries with the strictest safety measures, such as manufacturing, construction, healthcare and energy. They have been federally mandated for air, rail, trucking and other transportation workers since 1991.

Last year, New Jersey-based testing company Quest Diagnostics reported that among more than 6 million urine tests among U.S. workers, the positivity rate for marijuana was 4.1% for people tested pre-employment. The rate was 6.7% for those tested after a workplace accident.

There has been some decline in testing for marijuana specifically in the last five years or so, said Keith Ward, Quest’s vice president of employer solutions. And during the labor shortages of the past few years, some employers have cut back on testing to speed up the hiring process, especially in high-turnover industries like hospitality and food service.

“They need to hire someone today,” Ward said. “They don’t necessarily have time to wait 24 hours to get a drug test back. … So we’ve seen an impact from that in some industries.”

But marijuana is still included in 80% to 90% of drug testing panels, Ward said.

California became the first state to legalize medical marijuana in 1996. Colorado and Washington were the first to legalize recreational marijuana use in 2012.

Over the years, the new laws have not included protections for off-duty marijuana use, said Marcia McCormick, professor and co-director of the Wefel Center for Employment Law at St. Louis University said.

“It quickly became apparent that states needed to start thinking about this,” McCormick said. “Because people were under the impression that if they had a medical marijuana card, they could not be fired for their marijuana use outside of work. And that doesn’t seem to be true, in many states.”

Now there is such language in a handful of laws, McCormick said, including in Connecticut, Montana, Nevada, New Jersey and Rhode Island. But the laws are all very different, she said, so there is no commonly used standard.

Missouri’s amendment says employers can still fire or discipline any employee who uses pot in the workplace, or comes to work high. In most cases, employers cannot penalize workers for using marijuana during non-working hours if they have a medical card, and the use does not affect their ability to work. But the amendment does not address whether employers can fire or discipline an employee who uses recreational marijuana during their personal time.

That gap in the language leaves some “huge ambiguity,” McCormick said.

For example, the amendment does not define “under the influence,” noted Chuck Poplstein, who co-chairs the labor and employment group at Thompson Coburn.

“You can make all kinds of arguments,” Poplstein said. “The courts will probably have to give direction.”

Testing for cannabis use is also not as clean as testing for other substances. There is no legal standard for impairment, said Ward, of Quest Diagnostics. Oral fluid tests can roughly detect cannabis use within the past 24 to 36 hours. For urine tests, the timeline is about three days, and hair tests can detect use in about the past 90 days.

In addition, lawyers said there are a number of other open questions. For example, the amendment says that the protection does not apply to employees with medical marijuana cards whose “lawful use of a legal marijuana product” affects their ability to perform job responsibilities.

“What does it mean?” said Brittany Falkowski, a partner in the labor and employment practice group at Husch Blackwell.

For workers represented by unions, some of these ambiguities will be cleared up during contract negotiations.

Lenny Jones, state director for SEIU Healthcare Missouri, said the amendment gives the union more room to push for recreational marijuana to be treated the same way as medical marijuana use. “There’s more room for negotiation,” Jones said.

Some employers may simply no longer care whether candidates test positive for marijuana, said Charles Jellinek, a partner and leader of the employment and labor practice group at Bryan Cave Leighton Paisner.

The passage of the amendment could represent a “new public policy sentiment” in the state, he continued. “Is it really such a big deal if someone has a previous conviction, or if someone is a recreational user?” Jellinek said some employers may ask.

But don’t expect widespread change.

“Look, it’s still federally illegal,” Jellinek said. “You’re still going to have, I think, a handful of employers out there who are going to say, ‘I just don’t want someone working in my workplace who is intentionally flaunting a federal law.’

Bryce Gray of the Post-Dispatch contributed to this report.

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