On November 8, 2022, voters in Maryland and Missouri overwhelmingly approved ballot measures to legalize recreational marijuana, becoming the 20th and 21st states to do so. And as part of Missouri’s ballot initiative, the existing medical marijuana law was amended to include explicit employment protections for medical marijuana cardholders. At the same time, voters in three other states — Arkansas, North Dakota and South Dakota — opposed similar ballot measures.
Maryland question 4
Maryland voters overwhelmingly passed Question 4 with nearly 66 percent of the vote to amend the state constitution to allow recreational marijuana use by persons over the age of 21.
Accompanying legislation passed by the state legislature, House Bill (HB) 837, comes into effect following voter approval of the referendum. HB 837 specifically permits possession and personal use of up to 1.5 ounces of marijuana or 12 grams of concentrated marijuana effective July 1, 2023. The bill extends the decriminalization of marijuana to that date and would provide for the deletion of offenses that have been legalized by the act. However, the bill would ban smoking marijuana in places where smoking tobacco products is prohibited, including indoor workplaces.
Effects on the employer
Aside from general legalization of recreational marijuana, HB 837 does little to address the rights of employers to prohibit workers from using recreational marijuana. Therefore, Maryland employers may still be able to enforce drug policies and workplace testing programs even if the referendum is passed. However, Maryland employers should consider potential disability discrimination and housing considerations when addressing employment issues related to medical marijuana cardholders.
Missouri Amendment 3
According to the Missouri Secretary of State, voters in Missouri passed Amendment 3 with 53 percent in favor and 47 percent against. The measure revises and supplements the state’s existing medical marijuana regulations, allowing persons ages 21 and older to legally possess, purchase, use and grow marijuana for recreational purposes. Most importantly, the measure changes the state’s regulations on medical marijuana. It is scheduled to come into force on December 8, 2022.
In addition to legalizing marijuana for non-medical purposes, the measure provides employment protections for medical marijuana users. In particular, Missouri’s medical marijuana law will soon prohibit employers from discriminating against an employee because he or she: (1) possesses a medical marijuana identification card; (2) legally using marijuana outside of the employer’s premises during non-working hours; or (3) test positive for marijuana unless the employee has used, possessed, or been under the influence of marijuana while on the job.
Impact on Employers
Amendment 3 does not prevent employers from generally enforcing drug and alcohol free workplace policies or testing for marijuana. In addition, it does not permit employees to be under the influence of marijuana at work and does not provide employment protection for recreational marijuana users. Still, the change is relevant to employers because it changes Missouri’s existing medical marijuana law. The additional employment protections for medical marijuana cardholders will present Missouri employers with new challenges in dealing with marijuana issues in the workplace – the possibility of legal claims arising directly from the medical marijuana law itself.
The central theses
The legalization of marijuana for personal recreational use continues to slowly spread across the United States, although recent elections show that populations in certain areas of the country remain reluctant to legalize marijuana. Broader legalization could create additional challenges for employers when it comes to maintaining drug-free workplaces. Employers in Maryland and Missouri should review their drug use policies in light of new recreational marijuana legalization policies.