Frequently Asked Questions About Missouri’s New Medical Marijuana Law

On November 6, 2018, a majority of Missourians voted “yes” on Amendment 2, creating a constitutional right for Missourians to use medical marijuana under the supervision of a physician.[i] The passage of Amendment 2 raises questions all school districts must consider. Below, we discuss some of the most frequent questions that we receive from districts about medical marijuana.

1. Is it legal to use medical marijuana in Missouri now?       

No, because there is no legal way for an individual to access medical marijuana yet. Although Amendment 2 became effective on December 6, 2018, the Missouri Department of Health and Senior Services (“DHSS”) is still in the early stages of implementing the law.  On July 4, 2019, DHSS will begin accepting applications from qualifying individuals for an identification card and the ability to personally cultivate medical marijuana. DHSS must act on those applications within 30 days. On August 3, 2019, DHSS will begin accepting applications for cultivation and dispensary operation and must act on those applications by December 31, 2019. Marijuana may be available for purchase from a licensed dispensary as early as January 2020.

2. Do I have to permit my students and employees to use medical marijuana at school if they have a medical marijuana card?

No. Schools may continue to enforce a drug-free workplace policy and prohibit employees from working while under the influence of marijuana. Furthermore, Amendment 2 expressly prohibits the public use of medical marijuana. Given the timeline above, no Missourian will have a Missouri-issued identification card until at least August 3, 2019. Districts may wish to check existing drug-free policies this year to ensure medical marijuana usage at work or on district property is specifically prohibited.

Although no one will have a Missouri-issued identification card permitting them to cultivate or purchase medical marijuana until August 2019, Amendment 2 provides some protection for individuals with an equivalent card from another state. Amendment 2 says individuals who produce a valid and equivalent identification card issued from another state shall not be liable for criminal or civil liability for possession of marijuana. It is unclear how this would extend to the employment context, if at all, because we don’t know how DHSS will interpret this provision and whether an out-of-state card meets the requirements for valid medical marijuana use in Missouri or simply provides some immunity from prosecution. If a situation arises with an employee who has an out-of-state card, we recommend districts handle it on a case-by-case basis, in coordination with counsel, until DHSS issues its regulations and we know how this provision will be implemented.

3. I suspected an employee was under the influence of marijuana at work or on district property based on physical manifestations (blood-shot eyes, delayed reaction time, lack of coordination, etc.). We administered a drug test based on reasonable suspicion and the employee tested positive for marijuana. Can I dismiss the employee even if they claim their use of marijuana is for medical purposes?

Yes. The key is that you observed physical manifestations of impairment. Having a medical marijuana card does not permit an employee to use medical marijuana at work or on district property. If the district’s drug-free workplace policy prohibits employees from being under the influence while at work or on district property and allows for reasonable suspicion testing, and an employee tests positive, the employee is in violation of policy and subject to disciplinary action, up to and including dismissal.

Amendment 2 specifically addresses this issue. Amendment 2 does not permit someone to bring a claim for wrongful discharge, discrimination, or a similar cause of action against an employer for prohibiting an employee from being under the influence at work or for disciplining an employee for working or attempting to work while under the influence of marijuana.  This language, coupled with the prohibition on marijuana use in public places mentioned earlier, leads us to believe a district who has properly documented observations of the employee’s physical manifestations of impairment is in the best position to successfully defend against a wrongful termination, or similar, case.

Accordingly, districts may want to provide training to managers in spotting the signs of marijuana impairment.

4. We don’t have any observed physical manifestations of impairment, but an employee tested positive for marijuana after an accident. Can I dismiss the employee even if they claim their use of marijuana is for medical purposes?

Without documented observation of physical impairment, we advise districts proceed with caution when administering discipline for a positive marijuana test. An individual may test positive for marijuana if they used marijuana days, or even weeks prior to the test. Protection from claims afforded to employers by Amendment 2 extends to cases where discipline was administered for working or attempting to work while under the influence of marijuana. Amendment 2 gives an individual the right to use medical marijuana under certain circumstances, with the appropriate paperwork, and a district may face a constitutional claim if you take disciplinary action against an employee in this situation.

5. Is there overlap with a school’s obligations under the Americans with Disabilities Act?

Maybe. At this point, we do not know how a Missouri court will rule on this issue. The ADA does not require an employer to accommodate the current use of illegal drugs.[ii] Marijuana possession, sale, and cultivation, remains illegal pursuant to federal law.[iii] Therefore, a court could hold there is no obligation under the ADA to accommodate marijuana usage of any kind. But, an employee who wants to avoid discipline for having marijuana in their system at work may ask for an accommodation permitting them to use medical marijuana on their own time, off district property. Even if no obligation to accommodate exists, districts will need to decide how they are going to respond to these requests. We are always available to discuss the risks and benefits associated with a district’s approach.

In summary, Amendment 2 is sure to challenge the way school districts think about the use of marijuana. With some planning on the front end, communication with staff, and effort to review and update relevant policies, districts can be well positioned to confront these challenges. The EdCounsel Team has developed an FAQ document that districts may wish to distribute to employees. You can access it here. Please feel free to reach out to us if you would like to modify your own policies, or if you have questions about medical marijuana.

 

[i] For the full text of Amendment 2, see https://www.sos.mo.gov/CMSImages/Elections/Petitions/2018-051.pdf/.

[ii] 42 U.S.C. § 12114(a).

[iii] 21 U.S.C. § 812(b)(1).