Mississippi Medical ...

Mississippi Medical Cannabis Act and Its Impact on Employers

February 8, 2022 | by Tim Lindsay

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On February 2, 2022, Governor Tate Reeves signed into law the much-anticipated Mississippi Medical Cannabis Act (“MMCA”) which legalizes the use of marijuana for medical purposes in the state. Mississippi is the 37th state to enact a law relating to the use of marijuana as a medically authorized treatment for a “debilitating medical condition.” The bulk of the 445 pages of MMCA addresses the regulation, licensure and certification requisites for medical marijuana. However, there are provisions that should serve to comfort employers within the state.

Indeed, the MMCA appears to bend over backward in protecting Mississippi employers and their existing employment relationships with employees. Under Section 7 of the Act, entitled “Limitations,” the MMCA specifically provides that it shall not be construed to require an employer “to permit, accommodate, or allow the medical use of medical cannabis, or to modify any job or working conditions of any employee who engages in the medical use of medical cannabis.” In fact, the MMCA goes further in stating an employer is not prohibited from refusing to hire or otherwise taking an adverse employment action, up to and including termination, against an individual “as a result, in whole or in part, of that individual’s medical use of medical cannabis.” Nothing in the MMCA “prohibits an employer from disciplining an employee for ingesting medical cannabis in the workplace or for working while under the influence of medical cannabis.” Perhaps more comforting from an employer’s perspective is that the MMCA is not to be construed as creating a private right of action by an employee against an employer nor does it “affect the existing legal relationship between an employer and employee or any existing law or regulation relating to such relationship.”

So, what does this mean for Mississippi employers?  Simply put, it is business as usual except now employers may choose to show some tolerance toward non-DOT employees receiving authorized treatment via medical cannabis – as opposed to zero tolerance for all confirmed positive drug tests.  Although not required to do so by the MMCA, employers may want to consider modifying their drug testing policies specifically to excuse a positive drug test for marijuana if the employee possesses a medical certification card.  Nevertheless, the employer is still permitted to and should restrict the use of marijuana on its premises and take immediate action in the event an employee reports to work or is found to be working under the influence.

Finally, employers still need to be mindful of the applicable federal laws such as the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA). The MMCA defines what conditions will constitute a “debilitating medical condition” and most, if not all, would qualify as a disability under the ADA or a serious health condition under the FMLA. Therefore, caution should be taken to avoid any decision that may be viewed as taking an adverse employment action based on the underlying condition itself.