By J. Bradley Young, Harris Dowell Fisher & Young L.C
November 9, 2022 - Yesterday, Missouri voters passed Amendment 3, legalizing recreational marijuana in Missouri. Best estimates are that recreational marijuana could be sold in Missouri as early as February 2023.
WHAT DOES THIS MEAN FOR EMPLOYERS
Marijuana will now be treated like alcohol - - a legal drug that can still be banned in the workplace:
§287.120.6 – “Where the employee fails to obey any rule or policy…related to a drug-free workplace…the compensation and death benefit provided for herein shall be reduced 50% if the injury was sustained in conjunction with the use of alcohol or non-prescribed controlled drugs”
This means that if an employee tests positive for marijuana, the benefits paid to the employee can be reduced by 50% in light of the following:
1. The Employer MUST have a “Drug-Free Workplace Policy”. If an Employer does not have this in place, benefits cannot be reduced even with a positive drug test.
2. There is a rebuttable presumption that being under the influence of marijuana (or marijuana metabolites) was the proximate cause of the injury.
3. Refusal to take a drug test results in forfeiture of benefits if:
a. Employer had sufficient cause to suspect use of drugs by claimant, and
b. If the Employer’s policy authorized post-injury drug testing.
4. The initial testing MUST be administered within twenty-four hours of the accident or injury.
5. The employee MUST be given an opportunity to perform a second test (at his/her expense) upon the original sample.
6. The Employer must ask for the drug test to be performed, NOT the workers' compensation carrier.
OSHA CONSIDERATIONS
29 C.F.R. 1904.36 Prohibition against Discrimination: An Employer cannot discriminate against an employee for reporting a work related injury. OSHA interprets this rule as meaning that an Employer cannot use drug testing as a form of punishment for reporting a work injury.
Drug testing policies should limit post-incident testing to situations in which the alleged drug use is likely to have contributed to the accident. OSHA gives these examples of situations where drug testing would NOT be reasonable:
• Bee sting
• Repetitive trauma
• Injuries resulting from the absence of machine guarding
While some believe that OSHA has banned post-accident drug testing, this is simply not true! OSHA cannot ban all post-accident drug testing because this provision under Federal Law:
29 USC Sec. 653(b)(4): “Nothing in this chapter shall be construed to…in any manner affect any workmen’s compensation law or to…diminish or affect in any other manner the…statutory rights…of employers…under any law with respect to injuries…of employees arising out of, or in the course of, employment.”
BOTTOM LINE
Yes - - Legalizing recreational marijuana WILL impact Employers across Missouri. However, safety managers and HR managers must ensure that their companies have the proper policies in place, along with the proper systems and safety rules, to ensure a safe and drug-free workplace even after marijuana use becomes legal.
If you have any questions or wish to discuss this further, please contact Brad Young at byoung@harrisdowell.com or call (636) 532-0300.