July 25, 2023 - Brad Young of Harris, Dowell, Fisher & Young, LC
Under the Missouri Workers Compensation Act, employers can test for marijuana and reduce workers compensation benefits in situations where the employee tests positive for marijuana. That provision is found in Section 287.120.6, and it states:
"6. (1) Where the employee fails to obey any rule or policy adopted by the employer relating to a drug-free workplace or the use of alcohol or nonprescribed controlled drugs in the workplace, the compensation and death benefit provided for herein shall be reduced fifty percent if the injury was sustained in conjunction with the use of alcohol or nonprescribed controlled drugs."
However, the statutory language listed above does not specifically reference marijuana, only alcohol or “nonprescribed controlled drugs”. In November of 2022, Missouri legalized marijuana. As such, under state law, marijuana is not a “nonprescribed controlled drug”.
Currently, marijuana is a Schedule I controlled substance under the federal Controlled Substances Act (CSA; 21 U.S.C. §801 et seq.). As such, marijuana is still “illegal” under federal law and Missouri employers can continue to test for marijuana use and reduce workers compensation benefits in situations where employees test positive for marijuana after a work-related injury.
CONCERNS
According to reporting from Kyle Jaegar of Marijuana Moment, the federal government aims to finish its review of marijuana’s current legal status by the end of 2023, based on remarks from the head of the U.S. Department of Health of Human Services (HHS), Secretary Xavier Becerra. Becerra stated at a press briefing in Sacramento recently that he aims to provide President Joe Biden with a cannabis scheduling decision this year. More about this can be found here: https://www.mcglinchey.com/insights/federal-legalization-of-marijuana-may-be-closer-than-you-think/
Per the above, as well as many other sources, both Republicans and Democrats in Washington are moving to decriminalize marijuana on the federal level. If (ONCE) this happens, employers would lose the right to reduce workers compensation benefits in situations where employees use marijuana in conjunction with a work-related accident.
RECOMMENDATIONS
I have been working through Associated Industries of Missouri (AIM) to amend the Missouri Workers Compensation Act to ensure that even if marijuana is legalized on the federal level, Missouri employers will still be able to test for marijuana use after a work-related injury and that Missouri employers would still be able to reduce workers compensation benefits in the event that an employee suffers a work-related injury in conjunction with his use of marijuana.
I have submitted legislation to various state senators and state representatives. However, to date, none of the state senators or state representatives contacted have agreed to submit these amendments to modify the Missouri Workers Compensation Act.
I recommend all employers, carriers, brokers, or any other organizations that work with employers to manage workers compensation costs and benefits contact their state senators and state representatives to emphasize the importance of taking action now - - BEFORE marijuana is legalized on a national level, thereby preventing Missouri employers from reducing workers compensation benefits in situations where employees use marijuana in conjunction with a work-related accident.
If you have any questions, please let me know. I’m happy to help at byoung@harrisdowell.com.