Employers' Practical Guide: Reasonable Accommodation During the Hiring Process

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Recent Legalization of Recreational Marijuana in Missouri: What you need to know
courtesy of Colin Finnegan, Attorney, Ogletree Deakins Lawfirm

1. Employers may continue to enforce their policies that prohibit the use or possession of marijuana and/or marijuana products while at work or on the company’s premises. Similarly, employers remain free to enforce policies that prohibit employees from working while under the influence of alcohol and/or drugs, including marijuana and/or marijuana products. Further, employers retain the right to screen for marijuana as part of an established drug and alcohol testing regime. In fact, federally mandated testing and marijuana prohibitions, such as those imposed by U.S. Department of Transportation rules applicable to Commercial Driver’s Licenses (“CDL”), are not impacted by Amendment 3. These federally mandated prohibitions and testing requirements must continue. For those employees not subject to a federally mandated prohibition and testing requirement (e.g., positions not requiring a CDL), employers retain the right to test these employees for marijuana as part of a drug and alcohol testing regimen. However, as set forth below, a positive test result for marijuana, standing alone, may no longer be sufficient evidence to support a refusal to hire, discipline, or termination. 
   
2. Amendment 3 prohibits employers from discriminating against an employee with a medical marijuana identification card because he or she: (1) possesses a medical marijuana identification card (whether for the employee or someone in the employee’s care); (2) lawfully uses marijuana off the employer’s premises during nonworking hours; or (3) tests positive for marijuana, unless the employee used, possessed, or was under the influence of marijuana while working. In addition, an employer may take adverse action against a holder of a medical marijuana card if the employee’s lawful, off-duty use of marijuana “affects in any manner a person’s ability to perform job-related responsibilities, affects the safety of others, or conflicts with an occupational qualification that is reasonably related to the person’s employment.” 
3. To ensure compliance with Amendment 3’s new provisions, as well as other federal, state, and local laws, all employers should review their existing workplace drug policies. Additionally, because medical marijuana cardholders now have additional legal protections that are not applicable to recreational marijuana users, a positive test for marijuana, standing alone, may be insufficient to warrant disciplinary action.