Drugs, Alcohol and Smoking: Missouri
Federal law and guidance on this subject should be reviewed together with this section.
Author: XpertHR Editorial Team
- Missouri employers may discipline employees for alcohol and drug use at work. See Drugs and Alcohol.
- Missouri permits the use of medical marijuana by qualified registered users with a qualifying medical condition. See Medical Marijuana.
- Employers may implement and enforce policies that prohibit the use, sale, possession, distribution, purchase and cultivation of drugs and alcohol in the workplace. See Drug and Alcohol Policies.
- The state's Employment Security Law regulates drug and alcohol testing to establish employee misconduct connected with a claim for unemployment benefits. See Drug and Alcohol Testing.
- Missouri's Indoor Clean Air Act prohibits smoking in public places, which includes workplaces. See Smoking.
- An employer must make reasonable efforts to prevent smoking in the workplace by posting appropriate signs. See Postings.
- Employers are not required to have a smoking policy but may implement one that prohibits smoking in the workplace. See Smoking Policies.
Drugs and Alcohol
Missouri employers may discipline employees for alcohol and drug use at work. An employee may be denied unemployment or workers' compensation benefits for such use.
Employers that have federal contracts or that receive federal funds must comply with the federal Drug-Free Workplace Act of 1988. This act requires covered employers to take measures to maintain a drug-free workplace, including adopting a policy prohibiting drug use in the workplace.
Missouri voters approved Amendment 2, a ballot measure providing for the legal use of medical marijuana. The measure amends the Missouri Constitution to permit the use of medical marijuana by qualified registered users with a qualifying medical condition.
A qualifying medical condition means the condition of, symptoms related to or side effects from the treatment of:
- Intractable migraines unresponsive to other treatment;
- Chronic medical conditions that cause severe, persistent pain or persistent muscle spasms, including multiple sclerosis, seizures, Parkinson's disease and Tourette's syndrome;
- Debilitating psychiatric disorders, including post-traumatic stress disorder, if diagnosed by a state licensed psychiatrist;
- HIV or AIDS;
- A chronic medical condition that is normally treated with a prescription medication that could lead to dependence, under certain circumstances;
- Any terminal illness; or
- In the professional judgment of a physician, any other chronic, debilitating or other medical condition, including hepatitis C, ALS, inflammatory bowel disease, Crohn's disease, Huntington's disease, autism, neuropathies, sickle cell anemia, agitation of Alzheimer's disease, cachexia and wasting syndrome.
Missouri Con. art. XVI, § 1.2(15).
The law prohibits a person from:
- Undertaking any task while under the influence of marijuana when doing so would constitute negligence or professional malpractice; and
- Operating, navigating or being in actual physical control of any dangerous device or motor vehicle, aircraft or motorboat while under the influence of marijuana.
The law also prohibits a person from bringing a claim against an employer, a former employer or a prospective employer for wrongful discharge, discrimination or any similar claim based on the employer prohibiting the employee, former employee or prospective employee from being under the influence of marijuana while at work. Likewise, employers are granted immunity for disciplining or terminating an employee or former employee for working or attempting to work while under the influence of marijuana.
Missouri Con. art. XVI, § 7.1.
Note that while the use of medical marijuana may be legal under Missouri law, it is still a Schedule I substance under the Federal Controlled Substances Act and, therefore, illegal under federal law. In other words, regardless of state law, employers may follow federal law in prohibiting marijuana use in the workplace.
A Missouri employer should:
- Exercise caution in dealing with employees who are registered medical marijuana users under state law and ensure that employees are afforded reasonable accommodations where necessary due to the employee's underlying medical condition that gave rise to the need to use medical marijuana;
- Review its drug testing policies and reasonable accommodation policies and train supervisors to understand whether an employee is impaired. Supervisors and HR should also be trained on how to handle disciplining an employee who tests positive (e.g., providing employee a reasonable opportunity to contest the discipline);
- Address the policy on the use of medical marijuana within the written policy on substance abuse. For example, if an employer will treat medical marijuana just as it treats other illegal drug use, a published policy advising employees and applicants of that fact will help individuals who may be considering the use of medical marijuana to make an educated decision about how that use may affect their employment; and
- Be cautious when implementing workplace policies that deal with the use of legally prescribed medication, generally, including legally prescribed medical marijuana. The Americans with Disabilities Act (ADA) does not permit blanket prohibitions against on-the-job use of prescription medications in general. Thus, while drug testing policies can include legally prescribed drugs, an employer cannot have a zero-tolerance policy that permits adverse action (e.g., termination, demotion) against any employee who tests positive for prescription medication. Instead, following a positive test, the employer should ask if the employee is taking any prescribed drugs that would explain the positive result.
A Missouri employer may institute a policy against employees using or being under the influence of marijuana in the workplace. In addition, an employer may implement drug-free workplace policies and require employees to disclose prescription drugs that may adversely affect judgment, coordination or the ability to perform job duties. If an employee discloses that they use a prescription drug, the employer should first request medical certification regarding the effect of the medication on the employee's ability to safely perform essential job functions. The employer should then engage in the interactive process to determine whether a reasonable accommodation would enable the individual to remain employed.
Additionally, federally mandated drug-free workplace programs, including those subject to the jurisdiction of the US Department of Transportation (DOT), require employers to report positive marijuana test results, regardless of whether an employee's use of marijuana is for medicinal purposes.
Drug and Alcohol Policies
Employers may implement and enforce policies that prohibit the use, sale, possession, distribution, purchase and cultivation of drugs and alcohol in the workplace. These policies may also require employees to report to work and, while at work, remain completely free of illegal drugs, abused or nonprescribed prescription drugs and alcohol.
Employers should communicate the drug-free workplace policy to employees at the start of employment and at least annually. Further, employers covered under the federal Drug-Free Workplace Act must also obtain a signed acknowledgment of the employee's receipt of the policy.
Drug and Alcohol Testing
Missouri does not prohibit private sector employers from testing employees and job applicants for drug and alcohol abuse and establishing their own testing policies, including disciplinary actions in response to positive test results.
The state's Employment Security Law regulates drug and alcohol testing to establish employee misconduct connected with a claim for unemployment benefits. Under the Employment Security Law, an employee who is terminated for misconduct connected with their work may be disqualified from receiving unemployment insurance benefits. +§ 288.050 R.S.Mo.(2). An employee has committed misconduct if they are at work with a detectable amount of alcohol or a controlled substance in their system, in violation of the employer's alcohol and controlled substance workplace policy. +§ 288.045 R.S.Mo.(1). However, the use of a drug that conforms with the lawful order of a doctor or other health care provider is not considered misconduct. +§ 288.045 R.S.Mo.(8).
The state also regulates drug and alcohol testing for workers' compensation purposes. See Workers' Compensation Benefits Denial.
Written Drug and Alcohol Testing Policy
To admit drug or alcohol test results in an unemployment proceeding, the employer must have a policy that clearly states that employees may be subject to:
- Random testing;
- Preemployment testing;
- Reasonable suspicion testing; or
- Post-accident testing.
The Employment Security Law further provides that the employer must have previously notified employees of the alcohol and drug policy by conspicuously posting it in the workplace, including it in a written handbook or including a statement of the policy in a collective bargaining agreement (CBA). The policy, posting, handbook, CBA or other written notice must state that a positive test result may result in suspension or termination of employment. +§ 288.045 R.S.Mo.(3).
Before initiating a testing policy, the employer must provide a general one-time notice to all employees that an alcohol and drug testing policy is being implemented. The notice must be provided at least 60 days before the effective date of the program. +§ 288.045 R.S.Mo.(10).
Test Sample Collection and Processing
In order for an employer to establish employee misconduct based on a positive drug or alcohol test result, the Employment Security Law requires the written testing policy to incorporate the test specimen collection and chain of custody procedures prescribed in the DOT regulations for drug and alcohol testing at 49 CFR Part 40. +§ 288.045 R.S.Mo.(6).
Missouri does not prohibit preemployment alcohol and drug testing as a condition of employment.
Under the Employment Security Law, an employer may require a preemployment test for alcohol or controlled substance use as a condition of employment. A preemployment test that is positive for drugs or alcohol may be considered misconduct, and the test results are admissible as long as the individual was informed of the test requirement before taking the test. +§ 288.045 R.S.Mo.(4).
The state does not prohibit random drug and alcohol testing of employees.
Under the Employment Security Law, a positive drug or alcohol test result will be considered misconduct for unemployment benefits purposes as long as the written testing policy describes the procedures for random testing and are performed in accordance with federal DOT drug and alcohol testing requirements, and employees were notified of the test requirements before taking the test.
Reasonable Suspicion Testing
The state does not prohibit drug and alcohol testing of employees on the basis of a reasonable suspicion of drug or alcohol use at work.
Under the Employment Security Law, a positive drug or alcohol test result will be considered misconduct for unemployment benefits purposes as long as the written testing policy describes the procedures for reasonable suspicion testing and are performed in accordance with federal DOT drug and alcohol testing requirements, and employees were notified of the test requirements before taking the test.
The state does not prohibit post-accident drug and alcohol testing.
Under the Employment Security Law, a positive drug or alcohol test result will be considered misconduct for unemployment benefits purposes as long as the written testing policy describes the procedures for post-accident testing and are performed in accordance with federal DOT drug and alcohol testing requirements, and employees were notified of the test requirements before taking the test.
Such testing is also allowed for workers' compensation purposes. See Workers' Compensation Benefits Denial.
Follow-Up or Return-to-Work Testing
The state does not prohibit drug and alcohol testing of employees that have returned to work after a positive test result.
The state does not prohibit employers from testing job applicants and employees for marijuana use. While the use of medical marijuana may be legal under Missouri law, employers may follow federal law in prohibiting marijuana use in the workplace. The state's drug testing law covers Schedule I substances under the Federal Controlled Substances Act, and therefore does not prohibit employers from establishing employee misconduct in response to a positive test for Schedule I substances, which include marijuana.
The state does not prohibit employers from using a confirmed positive test result for drugs or alcohol, or the refusal of an employee or job applicant to provide a testing sample or specimen, as the basis for a range of adverse actions as described in the employer's written policy, including suspension or termination of employment. Employers must follow the Employment Security Law's requirements for drug and alcohol testing in order to establish misconduct based on positive test results for unemployment compensation purposes.
Workers' Compensation Benefits Denial
An employee may be denied all or a portion of workers' compensation benefits if they refuse to take a test for alcohol or an illegal drug (i.e., nonprescribed controlled substance) at the employer's request if the employer has sufficient cause to suspect alcohol or illegal drug use or if the employer's policy clearly authorizes post-injury testing.
If an employee tests positive for a nonprescribed controlled substance, it will be presumed that the nonprescribed drug was in the employee's system at the time of the accident or injury, as long as:
- The initial testing was administered within 24 hours of the accident or injury;
- Notice was given to the employee of the test results within 14 calendar days of the insurer or group self-insurer receiving actual notice of the confirmatory test results;
- The employee was given an opportunity to perform a second test upon the original sample; and
- The initial or any subsequent testing that forms the basis of the presumption was confirmed by mass spectrometry using generally accepted medical or forensic testing procedures.
The employee may rebut the presumption by a preponderance of evidence.
Drug and Alcohol Abuse
While the federal ADA does protect individuals who are former or recovering drug addicts from discrimination by covered employers (i.e., an entity that employs 15 or more individuals during a 20-week period), the ADA also specifically permits an employer to take adverse action (e.g., discipline) against employees on the basis of current illegal drug use. Therefore, an individual who currently abuses an illegal drug like marijuana is not considered to be an individual with a disability under the ADA. Note, however, that an employee's current alcohol addiction is protected by the ADA so an employer covered by the ADA must treat alcohol abuse as a disability.
Under the Missouri Human Rights Act, the term disability does not include current, illegal use of or addiction to a controlled substance; however, a person may be considered to have a disability if that person:
- Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of, and is not currently addicted to, a controlled substance or has otherwise been rehabilitated successfully and is no longer engaging in such use and is not currently addicted;
- Is participating in a supervised rehabilitation program and is no longer engaging in illegal use of controlled substances; or
- Is erroneously regarded as currently illegally using, or being addicted to, a controlled substance.
A group health policy must include basic chemical dependency coverage. For each benefit period, basic coverage must include:
- 26 days of outpatient treatment through a nonresidential treatment program;
- 21 days residential treatment; and
- Six days of medical or social-setting detoxification.
Basic coverage may be subject to a separate lifetime frequency cap of not less than 10 episodes of treatment, not including detoxification in life-threatening situations.
A group health policy that covers hospital treatment must cover treatment of alcoholism on the same basis as coverage for other illnesses, except that coverage for treatment of alcoholism may be limited to 30 days in any policy or contract benefit period. +§ 376.779 R.S.Mo..
Smoking means the possession of burning tobacco in the form of a cigarette, cigar, pipe or other smoking equipment.
Public place means any enclosed indoor area used by the general public or serving as a place of work. Public places include:
- Any retail or commercial establishments;
- Health care facilities;
- Any vehicle used for public transportation;
- Rest rooms;
- Libraries, educational facilities, day care facilities, museums, auditoriums and art galleries;
- All public areas and waiting rooms of public transportation;
- Any enclosed indoor place used for entertainment or recreation (e.g., gyms, theater lobbies, concert halls); and
- Any other enclosed indoor areas used by the general public (e.g., corridors, shopping malls).
A public place does not include:
- Private social function rooms;
- Limousines for hire and taxicabs when smoking is agreed to by the driver and passengers;
- Theatrical productions;
- Tobacco shops; and
- Bars, taverns, restaurants seating fewer than 50 people, bowling alleys and billiard parlors that post signs stating "Nonsmoking areas are unavailable"; and
- Enclosed facilities used for sporting events that seat more than 15,000 people.
A violation of the above provisions of the law is an infraction, punishable by a fine of up to $200 for an individual and $500 for a corporation. +§ 191.773 R.S.Mo.. More information can be found on the Missouri Health and Senior Services website.
Smoking or the use of other tobacco products is prohibited in public elementary or secondary school buildings, buses used solely to transport students, and licensed child care facilities when children are present. +§ 191.775 R.S.Mo.; +§ 191.776 R.S.Mo..
Missouri law makes it unlawful for an employer to discriminate against an employee or applicant because of the individual's lawful use of alcohol or tobacco products off the employer's premises during nonwork hours, unless the use interferes with the employee's duties and performance, the employee's co-workers or the employer's overall business operations. An employer may, however, extend health insurance at a reduced premium rate or lower deductible level to employees who do not smoke or use tobacco products. The law does not apply to religious organizations and church-operated institutions, and not-for-profit organizations whose principal business is health care promotion. +§ 290.145 R.S.Mo..
The use of e-cigarettes is not covered under the state law prohibiting smoking in the workplace.
A smoking area may be designated by a person having custody or control of a public place, except where smoking is prohibited by the fire marshal or by other law, ordinance or regulation. No public place can have more than 30 percent of its entire space designated as a smoking area. +§ 191.767 R.S.Mo..
The person having custody or control of the public place must make reasonable efforts to prevent smoking in the public place by arranging eating accordingly and utilizing available ventilation systems and physical barriers to isolate designated smoking areas. The person must also make a reasonable request of persons smoking to move to a designated smoking area. +§ 191.771 R.S.Mo..
The person having custody or control of a public place must make reasonable efforts to prevent smoking in the public place by posting appropriate signs indicating no-smoking or smoking area. These signs must be placed at a height and location easily seen by a person entering the public place and must not be obscured in any way. +§ 191.771 R.S.Mo..
Missouri does not require employers to implement a smoking policy. However, an employer may implement one that prohibits smoking in the workplace. Employers should consider including a Smoke-Free Workplace statement in their handbook to indicate where smoking is prohibited and the consequences for violating the policy.
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