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Missouri Employers: Evaluate Your Marijuana Drug Testing Policy in the Face of This Tight Labor Market

March 29, 2022

by Gregg A. Kinney

Missouri legalized marijuana for medical purposes in 2018. While that law prohibits the use of marijuana in the workplace or during work hours, it doesn’t address workplace drug testing or change drug testing policies that may have existed before the law passed. Federal employers and contractors, as well as employers of certain regulated professions involved in safety sensitive jobs, must still comply with federal laws relating to drug testing. All other Missouri employers, however, can choose whether to test for marijuana in a pre-employment drug screen and/or conduct marijuana testing of current employees.

Looking for Employees

The numbers don’t paint an optimistic picture for employers attempting to hire. Nationally, in January 2022 there were 11.3 million job openings. In January 2021, that number was only 7.2 million. So, in the space of just 12 months, the number of job openings in this country soared by 57%. That surge in job openings compares with just 6.3 million unemployed Americans who were looking for work as of February 2022. The JOLTS report (Job Openings and Labor Turnover) for that period shows the number of available jobs outnumbers the pool of workers by about 4.5 million, for a gap of 2.9%—the highest in post-World War II history.[i]

All this means the labor market is extremely and unusually tight.

Increasing Your Applicant Pool

In the face of these daunting labor statistics, how can Missouri employers increase their potential applicant pool? One potential solution is to eliminate marijuana screenings wherever safely possible.

As of February 2022, more than a quarter million Missourians had applied for medical marijuana use. Lyndall Fraker, Director of the Department of Health and Senior Services’ Section on Medical Marijuana Regulation, has stated that as of January 2022, more than 160,000 of those applicants had been granted medical marijuana cards. He expects that number to hit 200,000 before July 2022 (the third anniversary of the start of the program).[ii] Instead of merely eliminating those 200,000 potential job applicants, Missouri employers could evaluate their current policies to see if some of those applicants might be employable.

Changing Marijuana Testing Policies

Presumably, the goal of any employer’s drug testing policy is to create a safe workplace. Is your current policy actually accomplishing that goal? Medical sources generally agree that marijuana remains detectable for 5 to 10 days in occasional users’ blood, urine, and hair. For medical marijuana patients, who likely use the drug more regularly, marijuana could be detectable for 30 days or more. So, a positive marijuana test only tells an employer that a person had consumed marijuana sometime within the past 30 days.

Neither the Missouri medical marijuana law nor any other state or federal law mandates that an employer must allow employees to use medical marijuana in the workplace, even if that employee holds a DHSS medical marijuana card. These laws also do not mandate that an employer allow an impaired employee to work. As an employer, you could retain these prohibitions in your policy while modifying or eliminating the marijuana testing component.

Eliminating or modifying the marijuana testing policy is a move many employers are making. Last summer, Amazon (the nation’s second-largest private employer after Walmart) stopped requiring job candidates to pass a marijuana drug test for positions not regulated by the U.S. Department of Transportation. Amazon executives noted that the growing number of states legalizing marijuana, equity concerns, and the tight labor market all factored into their decision. “We’ve found that eliminating pre-employment testing for cannabis allows us to expand our applicant pool,” said Beth Galetti, Amazon’s senior vice president of human resources.[iii]

Similar moves are being made by Missouri governmental entities as well. Last September, the Kansas City, Missouri, City Council approved an ordinance eliminating pre-employment marijuana drug testing for most government workers. The measure, which passed by an 11-2 vote, states:

It shall be unlawful for the City of Kansas City to require a prospective employee to submit to testing for the presence of marijuana in the prospective employee’s system as a condition of employment.[iv]

There are exceptions to this policy change. Law enforcement personnel, workers who require commercial drivers’ licenses, and those involved in the supervision of “children, medical patients, disabled or other vulnerable individuals” can still be screened for cannabis.

Just this March, the St. Louis County Council also approved a bill to ban pre-employment and random drug testing for cannabis for most county workers. This new measure states:

No person currently employed by St. Louis County or applying for employment by St. Louis County shall be required to undergo pre-employment or random drug testing for the presence of marijuana metabolites (THC) as a condition or part of employment.[v]

As with the Kansas City ordinance, there are exceptions. People mandated to undergo drug testing under specific state or federal laws, those working in safety sensitive positions, and those suspected of having been intoxicated on the job could still be screened for cannabis. According to the St. Louis Post-Dispatch, County Executive Sam Page is expected to sign the ordinance into law.[vi]

The Takeaway

Times are changing, and employers struggling to hire employees may find that modifying their marijuana testing policies could increase their potential applicant pool.

This article is not meant to provide legal advice or legal analysis of this issue. If you would like to explore this issue further, please contact the attorneys in our Employment and Labor Law team.

[i]Job openings hold above 11 million, nearly 5 million more than the total unemployment level,” cnbc.com (March 9, 2022).

[ii]Active Missouri Medical Marijuana Patient Distribution,” Missouri Department of Health and Senior Services (last viewed 3/28/2022); andMedical marijuana sales in Missouri top $200M, meeting expected projections,” CannabisBusinessExecutive.com (January 3, 2022).

[iii]Amazon is supporting the effort to reform the nation’s cannabis policy,” AmazonNews.com (last viewed January 25, 2022).

[iv]Most Kansas City Government Workers Will No Longer Face Pre-Employment Marijuana,” MarijuanaMoment.net (September 24, 2021).

[v] St. Louis County Lawmakers Vote to End Marijuana Testing for Most County Workers as State Moves to Legalize,” MarijuanaMoment.net (March 10, 2022).

[vi] “Preemployment marijuana screenings to end for many jobs with St. Louis County,” St. Louis Post-Dispatch e-edition (March 10, 2022).

 

 

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