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Employers, patients face legal employment challenges

Employers, patients face legal employment challenges

Originally appeared in Greenway Magazine by Brandon Dunn

Missourians who have their medical marijuana card are offered no official protections by Article 14 of the Missouri State Constitution, as it pertains to employment, but that doesn’t mean that the state’s employers don’t face challenges as well.

“(1) Nothing in this section permits a person to: …

  (d) Bring 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.”

“The Missouri Constitution provides that state-legalization of medical marijuana does not impact an employer’s right to prohibit employees from being under the influence of medical marijuana at work. The constitution does not specifically address employers who prohibit employees from being a qualified medical marijuana patient regardless of on-the-job impairment,” explains Denise McCracken, Attorney at Dogwood Advisors (MoCannTrade Member), a cannabis law and compliance firm.

“Under the Missouri Worker’s Compensation statute, section 287.12 which allows employers to reduce the indemnity benefits if the employee has violated the employer’s drug and alcohol policy at the time of the injury,” David Layton, Senior Vice President of Crane Agency (MoCannTrade Platinum Level Member) explains. 

But what does that mean for employers? McCracken states, “A lot of employment law protections for employers comes from putting things in writing and giving appropriate notice to your employees. The way that you do that is with contracts, employee handbooks, or you may have specific consent forms for employees to sign covering for particularly sensitive policies, like drug and alcohol testing, that include the consequences of a positive test result.”

Layton echoed that advice, ”The employer has the responsibility of having such a policy in place and proving that the policy was communicated to the employee prior to the loss,” Layton continues, “The latter can be handled through a signature acknowledging receipt by the employee.”

In a state where medicinal marijuana is legal with a certification and license what problems does this present?

Layton explains, “The challenge is that an individual can test positive for marijuana after any impairment has worn off. By comparison, alcohol is processed and eliminated within a day of consumption,” leaving employers in a difficult position.

For employees that means that depending on their employer’s policies they could find themselves in undesirable circumstances, even as legal licensed-patient.

“Employees will need to be aware of the current law and realize that using medical marijuana can both lead to a diminished Workers’ Compensation benefit or even lead to termination based on the employer’s established drug policy,” Layton concludes.

For employers in Missouri’s cannabis industry, the legality of medical marijuana use creates another perplexing dichotomy. How does an employer best protect themselves and their employees?

We know, and understand, that a larger-than-average percentage of the workforce in a medical marijuana facility will be made up of medically certified patients, and while most licensed facilities promote and encourage legal patient use, this creates a catch-22 as it pertains to drug testing for hiring and worker’s compensation. 

Even if a company creates a unique policy that allows for patient use, they may put themselves or their employee at risk if they fail to communicate this policy with their carrier. 

“Asking permission in something like this is far better than asking forgiveness, knowing your employees didn’t get full benefits because a conversation was never had,” says Crane Agency Broker, Dave James. “(You need to be) having a conversation with your provider – stating, ‘We have a revised and edited drug-free/alcohol-free workplace policy modeled after our medical cannabis industry.” 

James stresses the importance of that dialogue, “The workers’ compensation carrier will use the employer’s Drug and Alcohol-Free policy to limit their loss, so we need to verify that the insurance carrier is going to live up to what we are providing our employees. You don’t want to be put in a position where your employees feel they can take their medication as necessary, and then they have a claim, and the rug is pulled out from underneath them.”