MISSOURI — On November 8, 2022, Missouri voters will have the chance to legalize recreational marijuana. The proposed state constitutional amendment, dubbed Amendment 3, would revise and amend the existing provisions regarding the legalization of marijuana for medical purposes, as well as allow individuals who are 21-years-old and older, to legally possess, purchase, consume and cultivate marijuana recreationally.

If approved by voters, the measure would become effective on December 8th of this year. Just four years ago, nearly 2/3rd’s of Missouri voters voted “yes” at the polls to legalize medical marijuana. Current polling indicates that similar support exists for legalizing recreational marijuana.

The new provision would not prevent employers from enforcing their drug and alcohol-free workplace policies, nor would it require employers to allow their employees to be under the influence of marijuana while at work. Also, Amendment 3 would not prevent employers from continuing to test for marijuana impairment, under certain circumstances. Similarly, employers would not be subject to any liability for disciplining or discharging an employee for working or attempting to work while under the influence of marijuana.

However, Amendment 3 would add a provision preventing an employer 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. Currently, Missouri law does not provide such protections for holders of medical marijuana identification cards. But, an employer would still be allowed to take action against an employee whose lawful use of marijuana off the employer’s premises and during non-working hours, hinders the employee’s ability to perform job-related responsibilities, affects the safety of others, or conflicts with an occupational qualification.

Notably, Amendment 3 does not include a comparable provision protecting recreational marijuana users’ right to consume marijuana products, even where such use occurs off the employer’s premises during nonworking hours. By comparison, Missouri employers are prohibited from discriminating against employees for their off-duty use of alcohol or tobacco. Because Amendment 3 would not extend that prohibition to recreational marijuana use, employers would retain the right to take adverse employment actions against employees for their recreational, off-duty consumption of marijuana.

While Amendment 3’s passage may decriminalize the recreational use and possession of marijuana, the immediate impact on Missouri employers remains to be seen. To help Missouri businesses maintain a safe and substance-free work environment, one thing that Missouri officials have already made clear is that Missouri employers would be allowed to take adverse employment actions against employees who engage in recreational, off-duty consumption of marijuana. However, Amendment 3 would afford holders of medical marijuana cards additional protections against discrimination. In preparation for December 8th, 2022, assuming that Amendment 3 will be adopted, Missouri officials are urging employers in the “Show-Me-State” to revisit all workplace drug policies to ensure compliance with federal, state and local laws.

“Ogletree Deakins,” a law firm with offices throughout the United States, advocates for employers, big or small. Those at Ogletree Deakins thoroughly researched Amendment 3 and then compiled the information in this article for Missouri companies and corporation, no matter the workforce size, so employers will know what some of their rights are, if Missouri voters approve the sale and use of recreational marijuana this November.

The law firm states they will continue to provide employee information regarding Missouri’s Amendment 3, if it’s passed on Election Day — Tuesday, November 8th. You can find more information on Ogletree Deakins HERE.