Employers, patients face legal employment challenges — Greenway Magazine3 min read
Missourians who hold their medical marijuana card are not officially protected by Article 14 of the Missouri State Constitution because it relates to employment. However, this does not mean that state employers do not face challenges either.
“(1) Nothing in this section permits a person to: …
(d) Bring a lawsuit against an employer, former employer, or prospective employer for wrongful dismissal, discrimination, or any similar ground for action or remedial action based on the employer, former employer, or prospective employer, the employee, the former employee or the ban prohibits potential employees from being under the influence of marijuana while at work, or from disciplining the employee or former employee, up to and including termination of employment for working or attempting to work under the influence of marijuana. “
“The Missouri Constitution provides that the state legalization of medical marijuana does not affect an employer’s right to prohibit workers from being under the influence of medical marijuana at work. The constitution does not specifically target employers who prohibit workers from being a qualified medical marijuana patient regardless of occupational impairment, ”said Denise McCracken, attorney at Dogwood Advisors, a cannabis law and compliance law firm.
“Under the Missouri Worker’s Compensation Statute, Section 287.12, which allows employers to cut compensation payments if the employee violated the employer’s drug and alcohol policy at the time of the violation,” said David Layton, senior vice president, Crane Agency .
But what does that mean for employers? McCracken explains, “Much of the labor protection afforded employers relies on keeping things in writing and notifying your employees appropriately. The way you do this is through contracts, employee handbooks, or you may have special employee consent forms to sign particularly sensitive guidelines like drug and alcohol tests that include the consequences of a positive test result. “
Layton repeated this advice: “It is the responsibility of the employer to have such a policy and to demonstrate that the policy was communicated to the employee prior to the loss.” confirms employees. “
In a state where medical marijuana is legal with a certification and license, what problems does it pose?
Layton explains, “The challenge is getting a person to test positive for marijuana after the impairment has subsided. In comparison, alcohol is processed and eliminated within a day of consumption, “which puts employers in a difficult position.
For workers, this means that depending on their employer’s guidelines, they may find themselves in undesirable circumstances, even as a legally licensed patient.
“Employees must be aware of applicable law and recognize that the use of medical marijuana can result in both a reduction in employee compensation and termination based on drug policies set by the employer,” concludes Layton.
For employers in Missouri’s cannabis industry, the legality of medical marijuana use creates another confusing dichotomy. How does an employer and its employees best protect themselves?
We know and understand that an above-average percentage of the workforce at a medical marijuana facility will be made up of medically certified patients, and while most licensed establishments encourage and encourage the legal use of patients, this creates a catch that they are drug testing for recruitment and employee compensation.
Even if a company creates a clear policy that allows patient use, they can put themselves or their employees at risk if they do not communicate this policy with their carrier.
“Asking permission in something like this is far better than asking for forgiveness, knowing that your employees didn’t get the full benefit because they never had a conversation,” said Dave James, broker for the Crane Agency. “(You have to be) have a conversation with your provider and say, ‘We have a revised and revised Drug-Free / Alcohol-Free Workplace Policy that is modeled on our medical cannabis industry.”
James emphasizes the importance of this dialogue: “The Workers Compensation Agency will use the employer’s drug and alcohol free policy to limit its loss. Therefore, we need to check whether the insurance carrier is doing justice to what we offer our employees. You don’t want to be put in a position where your employees feel like they can take their medication as needed and then they have a claim and the carpet will be pulled out from under them. “