The anticipated impact of Mississippi’s Medical Cannabis Act on the workplace

By:  Michelle T. High

            What does the passage of Mississippi’s Medical Cannabis Act (SB 2095) mean for your workplace?   Depending on whether you are seeking relief for a debilitating medical condition or a business owner trying to stay abreast of legal developments, this question is on the minds of many.   While national cannabis reform would certainly make a significant impact, Mississippi’s new law is unlikely to result in significant changes to most workplaces around the state.   

            Mississippi’s Medical Cannabis Act is a labor of compromise. Over the past several years, Mississippians have been involved in an ongoing debate regarding the legalization of marijuana and broadening of Harper Grace’s law, which allows for the use of cannabidiol (CBD) oil for certain, extremely limited, medical purposes.  Many legislators and healthcare providers have embraced the belief that certain medical conditions, as well as the unwanted side effects of medications for these conditions, maybe alleviated through the use of medical cannabis. However, there has been concern by opponents about the impact of legalizing any cannabis, and marijuana, in particular, might have on businesses and workplace productivity.  Cannabis is the botanical name for a genus of plants that produce a variety of chemicals called “cannabinoids”, including tetrahydrocannabinol (THC) and cannabidiol (CBD).  THC causes an intoxicating, “high” effect, while CBD does not. Marijuana is a variety within the cannabis genus that contains both THC and CBD.  Thus, the reference to cannabis in a variety of forms is much more encompassing than a reference to marijuana, as marijuana is but one variety.

            The state’s new medical cannabis law is undoubtedly more restrictive than the voter-supported Initiative 65, which was overturned by the Mississippi Supreme Court last year. However, the new Act recognizes a need for medical cannabis which extends beyond the limited use of cannabidiol (CBD) oil that was previously allowed under Miss. Code Ann. § 41-29-136. 

            Under the new legislation, Mississippians may use medical cannabis in a variety of forms to treat certain debilitating conditions, provided it is prescribed by a properly licensed physician, nurse practitioner, physician assistant, or optometrist pursuant to an in-person evaluation and bona fide patient-prescriber relationship. Qualifying conditions include but are not limited to, cancer, Parkinson's disease, Huntington’s disease, autism, post-traumatic stress disorder, muscular dystrophy, glaucoma, spastic quadriplegia, HIV/AIDS, Crohn's, ulcerative colitis, sickle cell anemia, chronic pain, seizures and wasting syndrome.

            Despite the fact that the new Medical Cannabis Act provides an individual with the opportunity to legally use cannabis as a method of treatment for qualifying medical conditions, it also allows employers to retain wide discretion over employment decisions relating to an employee’s use of medical cannabis. Significantly, Mississippi’s Medical Cannabis Act does not require employers to allow their employees to use cannabis, even if it is prescribed for the treatment of a qualifying medical condition, in conjunction with the terms of the Act and its associated regulations.  Similarly, employers do not have to modify any job or working conditions for any employee who engages in the medical use of cannabis.  The Act does not contain any prohibition against an employer taking adverse employment action against an employee because of the employee’s use of medical cannabis.   An employer may refuse to hire someone because of their use of medical cannabis, and an employer may discipline or terminate an employee because of their use.   Of course, employers cannot take adverse employment action against someone who is qualified to do their job, simply because the employer knows or believes they have a disability. The employer is protected only when the action relates to the actual use of cannabis. 

            Despite the fact that more than 35 states have legalized marijuana in some form or another, marijuana remains a Schedule 1 substance under the federal Controlled Substances Act and federal prohibitions against its use remain. (Hemp has been removed from the Controlled Substances Act, but the Drug Enforcement Administration (DEA) and Food and Drug Administration (FDA) still classify CBD as a Schedule I drug.)  Mississippi’s new law is not intended to interfere with any existing federal regulations, and it does not create a private right of action by an employee against an employer or change the legal relationship of the parties. The U.S. Department of Transportation’s drug and alcohol testing regulations remain unchanged and employers covered by the Americans with Disabilities Act are still not required to provide workplace accommodations for the use of medical marijuana.  In addition, employers may still establish and enforce drug-testing policies and may continue to opt into the State’s workers’ compensation premium discount program, a program which provides employers who establish a drug-free workplace program in accordance with Miss. Code Ann. § 71-3-201, et. seq. discounts with respect to their workers’ compensation premiums.

            Clearly, Mississippi’s Medical Cannabis Act provides broad protection for employers who are worried about the use of medical cannabis impacting their work environment, employee productivity or legal obligations to employees that are seeking to use cannabis as part of a medical treatment program.   However, the Act does not preclude employers from deciding how they want to address the use of medical cannabis by employees.  Depending on the nature of a business and type of work to be performed by its employees, some businesses will not be opposed to the use of medicinal cannabis in certain circumstances.  A business may elect to allow employees who engage in the use of medical cannabis consistent with the recommendations of their healthcare provider and the provisions of the new Act, to do so without adverse employment actions being taken.   Those businesses that employ individuals who are medical marijuana cardholders, may not be penalized or denied any benefit under Mississippi law for doing so.  

            Regardless of the approach taken by an employer, there are certain rules regarding the use of medical cannabis that will be applicable in any circumstance.  No person who operates or controls a motor vehicle, aircraft, train, or motorboat is permitted to be under the influence of medical cannabis, as a matter of law.  Additionally, smoking or vaping medical cannabis in a public place or in a motor vehicle is prohibited under the law.  Individuals who sustain a workplace injury or make a claim for a workplace injury pursuant to Mississippi Workers’ Compensation Act remain subject to employer-mandated drug and alcohol testing.  If an individual test positive for cannabis at the time of the injury or refuses to test,  it will be presumed that the use of cannabis was the proximate cause of the individual’s injury, even if the use was in accordance with the Mississippi Medical Cannabis Act.  The burden of proof will then be on the employee to show the use of cannabis was not a contributing cause to the accident.

            Ultimately, while Mississippians have more medical treatment options available to them since the passage of Mississippi’s Medical Cannabis Act, this does not equate to a right to employment or workplace accommodations if using cannabis for a qualifying condition.  Until marijuana is removed from its categorization as a Schedule 1 drug under the Controlled Substances Act, it is unlikely that employers will be required to accommodate the usage of medical cannabis under the Americans with Disabilities Act or otherwise.