Voters in Maryland and Missouri approved laws to legalize recreational marijuana on Election Day 2022. Recreational marijuana ballot initiatives did not pass in Arkansas, North Dakota and South Dakota.
Maryland voters approved a state constitutional amendment that will allow the use of cannabis by anyone over the age of 21 on or after July 1, 2023, subject to the General Assembly passing legislation concerning the regulation, distribution, possession and taxation of marijuana.
Missouri voters also approved an amendment to the state constitution. The amendment addresses both medical marijuana and recreational marijuana.
The medical marijuana law will permit nurse practitioners to recommend medical marijuana use to their patients in addition to physicians. It also will permit the use of “marijuana-infused products,” i.e., products that are infused, dipped, sprayed, coated or mixed with marijuana or marijuana extracts. Those products may be vaporized or smoked, or may consist of edible products, ingestible products, topical products, suppositories, and “infused pre-rolls” (a type of consumable or smokable product). Medical marijuana cards will be valid for three years. While the medical marijuana law does not permit operation of a motor vehicle while under the influence of marijuana, the law is now revised to say that the arrest or conviction of a medical marijuana user will require evidence that the user was in actual physical control of the motor vehicle and may not rely solely on the presence of THC or THC metabolites in the person’s system.
The medical marijuana law still prohibits legal claims against employers based on an employer’s prohibition of being under the influence of marijuana while at work. However, new provisions state that employers may not discriminate against medical marijuana users unless: failure to do so would result in the loss of a monetary or licensing-related benefits under federal law, or unless the person was under the influence of marijuana on the employer’s premises or during work hours. This discrimination prohibition includes when an employee has tested positive for marijuana, unless the employer can show that the employee was “under the influence” at work, which is not defined.
The constitutional amendment also permits the recreational use of marijuana by adults age 21 and older. Employers are not required to permit or accommodate the use of marijuana at work or on the employer’s property. Employers are permitted to take adverse employment actions if a person is working while under the influence of marijuana. It is not clear whether this includes a positive drug test result for marijuana.
Finally, the new law will allow individuals who are serving prison sentences for certain crimes including possession of up to three pounds of marijuana to petition the sentencing court to vacate the sentence, order immediate release and expunge the government’s records. There are additional provisions addressing expungement of criminal records for those who previously served prison sentences related to certain marijuana-related crimes.
The Missouri constitutional amendment will take effect thirty days after the election.
Employers in Maryland and Missouri should review their drug and alcohol policies to ensure compliance with these new laws.