A panel discussion on marijuana in the workplace brought out a large crowd to this month’s Farmington Regional Chamber business and community luncheon held Thursday at the Centene Center.
Making up the three-person panel was Kimber Monroe, local attorney; Rocky Newsom, US Tool Group Environmental Health and Safety manager; and Alex Freund, owner of The Valley, the city’s first medical marijuana dispensary. The Block Dispensary also has a location in Farmington.
As panel members took the stage, Monroe started off the program by providing details on the statewide approval of recreational marijuana use in the Nov. 8 election.
“So, while everybody is getting up here, I will read a little thing that I found. 'Amendment 3 in Missouri was passed with 53% of the vote in November, making Missouri the 21st state to legalize recreational marijuana, making it legal for anyone older than 21 to buy, possess, deliver, use, manufacture and sell marijuana in the state. It also set the stage for thousands of Missourians to have their criminal records expunged.'”
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Chamber Events Director Deena Ward asked Monroe, “What am I not allowed to do under Amendment 3?”
Responding to the question, Monroe said, “To start off with, let’s just backup and say, ‘what’s going on here?’ Well, we know that on Nov. 8th, we voted to have and legalize the recreational use of marijuana, but what we also did that people may not be aware of is, we also made changes to how medical marijuana is perceived in the workplace. And so, we know the laws are actually in effect today, but what does this mean for employers?
“There’s some good news, and there’s some bad news. And at the end of the day, you’re probably going to have to take some additional actions. So, when it comes to recreational use, that’s pretty straightforward. You can continue with your current policies that say, ‘drug-free workplace, you can’t come to work impaired.’ You can even go as far as saying, ‘If you test positive for drug use, I can fire you.’”
Monroe said the situation is different when it comes to the use of medical marijuana in the workplace.
“What the law says is that you can still say, ‘You can’t come to work impaired,’ but where you may run into issues is with testing. The law is very clear that you cannot discriminate or negatively impact someone because they have a medical marijuana card. And so what that means from a practical standpoint is, that if you are looking to hire somebody and you don’t have an exception — and under the law, the exception is if you would not be able to receive federal funds or you would violate, let’s say a rule under [the Department of Transportation], — then that’s your exception, and you don’t have to worry about this.
“But if you don’t fall under an exception, what that means is that if somebody were to use medical marijuana and you come and do a drug test pre-application, and it comes back positive, your next step should be to say, ‘Hey, look, your drug test came back positive for marijuana. Do you have a medical marijuana card?’ And if they say, ‘yes, I do,’ and they can provide proof of that, then you can’t, on its face, decide not to hire them because you would be in violation of the law. Now, let’s say you have a current employee, and you don’t fall underneath an exception, and that person shows up impaired for work, and you believe they are under the influence of marijuana, alcohol, etc., what you will need to do is make sure you have evidence of the fact that they are impaired.”
Monroe explained that any evidence would most likely be obtained by the training of a company’s HR (human relations) staff and would be the first step in creating an incident file.
“But then let’s say you make them submit to a drug test,” she said. “Well, if it comes back positive and they have a medical marijuana card, now you’re going to have a battle because we all know that drug tests are a little suspect because it’s hard to show when somebody has used marijuana. And under this new law, if you hold a medical marijuana card and you tell your employer, ‘I didn’t use it on company property during work hours; I used it after hours.’ Well, if they’re using it after hours and they have a medical marijuana card, you can’t do anything. And, so, those are just some of the uphill battles that you all are going to have to face.”
Policies and procedures
Monroe noted there are some things that a company will have to look at in its policies, procedures and training programs.
In answer to a question about what happens if you hire an employee who then applies for and receives a medical marijuana card, Newsom of U.S. Tool Group said, “Once they have a card, they have the card. You’re not going to be able to discriminate against that. If they are in the middle of [an] issue because of having a positive test, they can’t get a card and say, ‘OK, now I got it.’ That doesn’t work.”
Regarding a company’s policies and procedures, Newsom acknowledged there will be a large number of templates provided by their insurance carriers.
“Whether it be your insurance carrier or whether it be any of your risk management with your insurances, it’s always one of the best places to start,” he said. “Being the safety guide, that’s what I do for everything. You should never have to reinvent the wheel.”
Another question dealt with a company hiring a new employee who doesn’t have a medical card.
“If during their probationary period, they get a medical card, then they’re OK to [come to work impaired]?” the questioner asked.
Newsom said, “That’s an easy one. It really is. If you see reasonable suspicion of them being impaired, does it really matter if it’s painkillers or if it’s alcohol or drugs or whatever? It doesn’t make any difference. Impairment is impairment. That is the best way I can describe for anybody dealing with a situation where it’s visibly obvious there’s some impairment. Having your staff trained to recognize those things is key to finding the answer to what to do with this situation.
“Our situation at US Tool — we have two people that have to have independent observation of what’s going on. They have their checklist of reasonable suspicion. There are some times that it’s way obvious. If I have someone that comes in that’s inebriated and falls into the wall and gets injured, I immediately have reasonable suspicion to start checking, 'Why did they fall into the wall when there was nothing on the floor?' They have slurred speech and all the obvious things. Impairment is impairment, so you would pursue it, however [you need to]. However, if you do a drug screen and you find out it’s marijuana and then they, ‘Here’s the card,’ you’re done.”
Newsom added that if the employee is impaired, they can — technically — be sent home.
“Somebody delivers them home, obviously, because it’s a safety hazard,” he said.
Asked if a prospective employee can still be asked about their criminal history on a job application, Monroe said, The answer is, yes, you can always inquire, but then it depends on what you do with that information. We know that under the new law that there’s a process for expunging convictions related to marijuana.
“Of course, there are limitations associated with that. So, if you get a criminal background check back before expungement takes place and it relates to a minor offense, I would suggest you talk to your outside counsel or your HR person because you may or may not be able to do something with that. I would say that if it should be expunged, then don’t look at it. Ignore it and pretend it didn’t happen.”
A question was asked about the difference between a person taking a pill for diabetes in the morning before coming to work and a person who uses marijuana for a medical reason doing the same.
The Village owner Alex Freund responded to the question, saying, “I think it comes back to the impairment, like Kimber was saying. With your medical card, you can use the product. You just cannot show signs of impairment at work. I think that’s the difference. Your work can’t prevent you from using the medicine the doctor has OK’d you to use. You just can’t show up to your employer being impaired.”
Asked what impairment entails and if it can vary from business to business, Freund said, “Not that I’m aware of, and as far as the state of Missouri goes too, with the recreational rules. So, this bill just passed on Nov. 8th. It did start to take effect — like the possession — you can legally possess. We have not started selling recreational marijuana, and they are still in the process of writing the rules, and there are definitions coming out with that.
A question was raised about whether or not someone who uses medical marijuana in the morning will necessarily be impaired at work.
“People that are lifelong users that have used for 20 or 30 years, tolerance levels come into play. There are people who use constantly throughout the day — you know, hourly — that you would never know that they’re consuming a product. Then there are others — they can take as little as one hit of a joint or 5 milligrams of gummy, and they might show signs of impairment.”
Monroe said, “I want to be clear because I know this comes down to semantics, but it’s important. If your employer has a policy in place that you cannot use drugs or alcohol while at work, etc., they can’t show up under the influence of marijuana, period. But from a practical standpoint, the reason we’re talking about impairment is because you have to be able to prove that they are, in fact, under the influence, and that’s why we’re using the term ‘impaired.’ So, I just wanted to make that distinction. Your policy can have a zero tolerance, but then it comes back to how do you implement and prove that they’re in violation of that policy.”
2023 chamber board
Earlier in the meeting, the 2023 regional chamber’s board of directors was introduced. They are Board Chair Andy Buchanan, First State Community Bank vice president/loan officer; Past Board Chair Larry Joseph, Farm Bureau Insurance-Sansagraw sales; Vice Chair/Economic Development Jessica Horton, Farmington Unico Bank branch manager/AVP; Treasurer Teri Morton, Boyd & Associates, LLC; Rocky Good, New Heights Church pastor; Brent Williams, US Tool president; Brian McNamara, attorney; Karen Melton, Hearing Care Partners president; Tim Morgan, Aufenberg Chevrolet-Buick-GMC service manager; Paul Meinsen, Edward Jones financial advisor; Kim Hutson, Coldwell Banker Hulsey broker/owner; Steve Sloup, Ozarks Federal Savings & Loan president/CEO; Cheryl Snead, C&C Suppliers Janitorial & Food Service Supplies, LLC; Aaron Baker, doctor of physical therapy, Parkland Health Center; William Britton, Walmart Supercenter store manager; Chelley Odle, KFMO/B104 Radio owner/managing partner; and Candy Hente, Downtown Development Association.
Hente next recognized Chris Morrison, who will remain on the 2023 board of directors but not as a voting member.
In recognizing Morrison, Hente said, “We do have to say farewell to one important board member who has been around a very long time. I should have written something out, but I’ve been contemplating what I’ve wanted to say for a long, long time. I worked with Chris Morrison on various projects before he even came to the chamber, and I’ve had such a great experience working with Chris.
“He had such great commonsense, and he’s such a diplomat in working with people and interacting with people. It’s been a tremendous asset to the Farmington chamber board. He’s now a current city council member as well. We have twisted his arm just a little bit to keep him on as the non-voting ex-officio representative for the city of Farmington for our board meetings.”
Calling Morrison up to the stage, Hente presented him with his award and said, “We just so appreciate your service and the guy that you are.”
Kevin R. Jenkins is the managing editor of the Farmington Press and can be reached at 573-783-9667 or email@example.com