Drug testing - Missouri

Marijuana testing

Missouri’s medical and recreational marijuana laws impact testing for marijuana.

An employer may not take action based on a positive drug test for marijuana components or metabolites of a person who has a valid qualifying patient identification card, unless the person used, possessed, or was under the influence of medical marijuana on the premises of the place of employment or during the hours of employment. There are exceptions for testing employees in safety-sensitive positions and for testing under federal requirements.

An employer may refuse to hire, discharge, discipline, or otherwise take an adverse employment action against a person because that person was working while under the influence of recreational marijuana. The law does not define “under the influence," however. Because of this, an employer should exercise caution when taking adverse action based only on a positive drug test for marijuana.

Unemployment insurance

If an employee is at work with a detectable amount of drugs or alcohol in the employee’s system in violation of the employer’s policy, it is considered misconduct for unemployment insurance purposes.

The employer’s alcohol and controlled substance workplace policy should be posted by the employer, included in an employee handbook, or included in a collective bargaining agreement.

The policy must state that a positive test will result in suspension or termination. Any drug testing policy implemented after January 1, 2005, must provide 60 days prior notice before it becomes effective.

In addition:

• The test must be conducted by a laboratory certified by the United States Department of Health and Human Services.
• Specimen collection for drugs and alcohol must be performed under the U.S. Department of Transportation (DOT) rules at 49 C.F.R., Part 40, and chain-of-custody procedures established by those regulations must also be used.
• “Specimen” means tissue, fluid, or a product of the human body capable of revealing the presence of alcohol or drugs or their metabolites.

The employee may request a confirmation test. Use of a controlled substance in conformity with the lawful order of a healthcare practitioner, shall not be deemed to be misconduct connected with work for the purposes of this section.

An employer may require a pre-employment test for alcohol or controlled substance use as a condition of employment, and test results shall be admissible so long as the claimant was informed of the test requirement prior to taking the test.

Workers’ compensation
Benefits may be reduced or denied when drugs or alcohol played a role in the accident or injury. Specific drug testing procedures must be followed.

Missouri’s workers’ compensation law, which is found at Missouri Revised Statute §287.120(6), states:

6. (1) Where the employee fails to obey any rule or policy adopted by the employer relating to a drug-free workplace or the use of alcohol or nonprescribed controlled drugs in the workplace, the compensation and death benefit provided for herein shall be reduced fifty percent if the injury was sustained in conjunction with the use of alcohol or nonprescribed controlled drugs.

(2) If, however, the use of alcohol or nonprescribed controlled drugs in violation of the employer’s rule or policy is the proximate cause of the injury, then the benefits or compensation otherwise payable under this chapter for death or disability shall be forfeited.

(3) The voluntary use of alcohol to the percentage of blood alcohol sufficient under Missouri law to constitute legal intoxication shall give rise to a rebuttable presumption that the voluntary use of alcohol under such circumstances was the proximate cause of the injury. A preponderance of the evidence standard shall apply to rebut such presumption. An employee’s refusal to take a test for alcohol or a nonprescribed controlled substance, as defined by section 195.010, RSMo, at the request of the employer shall result in the forfeiture of benefits under this chapter if the employer had sufficient cause to suspect use of alcohol or a nonprescribed controlled substance by the claimant or if the employer’s policy clearly authorizes post-injury testing.

(4) Any positive test result for a nonprescribed controlled drug or the metabolites of such drug from an employee shall give rise to a rebuttable presumption, which may be rebutted by a preponderance of evidence, that the tested nonprescribed controlled drug was in the employee’s system at the time of the accident or injury and that the injury was sustained in conjunction with the use of the tested nonprescribed controlled drug if:

(a) The initial testing was administered within twenty-four hours of the accident or injury;

(b) Notice was given to the employee of the test results within fourteen calendar days of the insurer or group self-insurer receiving actual notice of the confirmatory test results;

(c) The employee was given an opportunity to perform a second test upon the original sample; and

(d) 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.