On Tuesday, November 8, 2022, Missouri voters passed Amendment 3 to the Missouri Constitution, which made Missouri the twenty-first state to legalize recreational marijuana. Assuming the election results are certified, the amendment will take effect starting December 8, 2022. Missouri residents over the age of 21 will then be able to purchase various forms of marijuana (such as edibles, pre-rolled joints, and buds or flowers) from dispensaries without being required to show a medical marijuana license. In addition, the amendment will expunge certain marijuana-related offenses.

The amendment also presents some new implications for employers. We’ve reviewed the amendment in its entirety and highlighted key issues that Missouri employers should be aware of below.

Does the passing of this amendment mean that employees can use marijuana in the workplace?

No. The amendment explicitly states that it is not to be construed as allowing for the use of marijuana in the workplace. Missouri employers are not required to allow or accommodate marijuana use in the workplace or on the employer’s property.

Can an employer consider legal off-duty use in connection with discipline issues?

Employees may be disciplined for working or attempting to work while under the influence of marijuana. Bottom line: Missouri employers may still maintain a drug-free workplace.

What does “under the influence” mean? Is there a specific test or procedure required to determine if someone is “under the influence” of marijuana?

Because this amendment is so new, that remains to be seen. Amendment 3 does not expand on what it means for an employee to be “under the influence” of marijuana. Unlike some states such as Colorado, Missouri law does not currently define “under the influence” of marijuana in the context of driving while intoxicated, so this will be an interesting development.

Can an employee bring a claim for wrongful termination or discrimination based on a prohibition which might have the effect of limiting an employee’s legal use?

No. The amendment specifically prohibits an employee from bringing such a claim against a current, former, or prospective employer for prohibiting the employee from, or disciplining the employee for, being “under the influence” of marijuana while at work or attempting to work.

How does this amendment affect an employer’s workplace drug testing policy?

Missouri employers may still require applicants and employees to undergo drug testing as long as the policy comports with applicable law.

Does this amendment mean that medical marijuana is no longer an issue?

The amendment is clear that the legalization of recreational marijuana does not change the current law regarding medical marijuana use.

How does this amendment affect an employer’s criminal history inquiries and background check policies?

While Missouri law permits an employer to make inquiries into an applicant’s criminal history, the passing of Amendment 3 means that certain non-violent offenses related to marijuana will be expunged. Missouri employers are not permitted to inquire about expunged criminal records during the application process.