Marijuana Legalization: Can employers still have drug testing policies and discipline those who test positive?

As more states legalize the use of marijuana for both medical and personal use, employers often ask about their drug testing policies.

For this focused conversation, Colorado legalized the personal use of marijuana in 2012. Missouri did so in 2022. Neither Kansas nor Texas has done so yet[1]; however, both Kansas and Texas allow low-THC medical use of cannabis.

The obvious question here is, can employers continue drug testing? The answer is “yes.” Furthermore, you’d want to know if employers can discipline those who test positive. That answer is also “yes, but discrimination is prohibited in Missouri’s law.”

Let’s look at these issues by state – because that is, after all, how you must consider them.

Colorado

So far, employers in Colorado can have drug testing policies. They may also discipline those who test positive, including refusing to hire an individual that tests positive for marijuana or terminating an employee that violates the policy.

Efforts to protect marijuana users have failed so far.[2]  Employee efforts to rely on Colorado’s “off-duty lawful activity” law have also failed.[3]

Missouri

Unlike Colorado, Missouri’s law does limit employer action. The medical and adult-use provisions of the law do not require an employer’s accommodation of marijuana use.

However, the medical marijuana provisions prohibit an employer from discriminating against a person in hiring, termination, or any term or condition of employment or otherwise penalizing a person if the discrimination is based upon either of the following:

• The person’s status as a qualifying patient or primary caregiver who has a valid identification card, including the person’s legal use of a lawful marijuana product off the employer’s premises during nonworking hours, unless the person was under the influence of medical marijuana on the premises of the place of employment or during the hours of employment; or

• A positive drug test for marijuana components or metabolites of a person who has a valid qualifying patient identification card unless the person used, possessed or was under the influence of medical marijuana on the premises of the place of employment or during the hours of employment.

These limitations do not apply to an employee whose use of marijuana impacts their ability to perform job-related responsibilities or the safety of others or conflicts with a bona fide occupational qualification.

Employer Protection in Missouri

Constitutional Amendment 3, approved by voters on November 8, 2022, prohibits a claim against any “employer, former employer, or prospective employer for wrongful discharge, discrimination, or any similar cause of action or remedy, based on the employer, former employer, or prospective employer prohibiting the employee, former employee, or prospective employee from being under the influence of marijuana while at work or disciplining the employee or former employee, up to and including termination from employment, for working or attempting to work while under the influence of marijuana.”

Job descriptions

The previous paragraph brings to mind the importance of job descriptions. One recent court made it clear that determining whether the employee could perform the job’s essential functions was critical to the case’s outcome.[4] Job descriptions should clarify the specific “job-related responsibilities,” what jobs are to be considered safety-sensitive and why, and identify all bona fide occupational qualifications.

In short, be specific![5]

Policy and procedures

Employers in every state should review their policies, procedures, and job descriptions to ensure compliance with the ever-changing legislative changes related to marijuana. If such a thing can be said, the current trend is legislative action to protect an employee’s “off-duty use of lawful products,” i.e., marijuana.

Next month, we’ll discuss the pros and cons of different marijuana/THC testing methods.

If you are reviewing your current procedures and are looking for assistance, reach out to Director of Safety Aaron Paris at The Miller Group or get in touch with us at the Drug Screening Compliance Institute. (We are happy to offer clients of The Miller Group a reduced rate on services.)

Guest author blog written by William J. Judge, JD, LL.M. and Nick Hartman from the Drug Screening Compliance Institute

Part Two

[1] In Texas efforts are underway to push for legalization and/or decriminalization in 2023, In 2022 Kansas efforts to decriminalize the personal use of small amounts of cannabis failed. See  https://www.mpp.org/states 

[2] https://www.denverpost.com/2022/03/25/colorado-workers-marijuana-testing-employers/

[3] Coats v. Dish Network LLC 350 P. 3d 849 (Col. S. Ct. 2015)

[4] Barbuto v. Advantage Sales and Marketing, LLC, 477 Mass. 456, July 17, 2017.

[5] For a complete discussion of job descriptions see https://www.drugscreeningci.com/blog/datia-focus-the-role-of-job-descriptions-in-the-marijuana-era