Rarely are we able to combine the Grateful Dead and Mississippi in the same sentence, but the band once said, what a long strange trip it’s been.
In November 2020, Mississippi voters overwhelmingly approved Initiative Measure No. 65, a citizen-driven ballot initiative. Initiative Measure No. 65 would have amended the Mississippi Constitution to create a state medical marijuana program. However, on May 14, 2021, the Mississippi Supreme Court overturned Initiative Measure No. 65, ruling that the state election law governing voter ballot initiatives was out-of-date and unworkable.
The Mississippi legislature thereafter began working to pass a medical marijuana bill. On January 26, 2022, the Mississippi legislature approved Senate Bill 2095, the “Mississippi Medical Cannabis Act.” Mississippi Governor Tate Reeves signed the bill into law on February 2, 2022. The act goes into effect immediately.
The act lists twenty medical conditions and categories of conditions for which an individual would be eligible for a medical marijuana card in Mississippi, including cancer, Crohn’s disease, post-traumatic stress disorder, any “chronic, terminal, or debilitating” condition producing chronic pain, and “any other condition” that may be added by the Mississippi Department of Health in the future. The act makes clear that it prohibits “smoking medical [marijuana] in a public place or in a motor vehicle.”
Importantly, unlike many other state medical marijuana legalization laws, the Mississippi act does not contain any express employment protections for medical marijuana cardholders. With respect to employment, the act specifically states that it does not:
- require an employer, health insurer, or workers’ compensation insurer to pay or reimburse for costs associated with medical marijuana use;
- require an employer to permit, accommodate, or allow the use of medical marijuana by employees;
- require an employer to modify any job or working conditions of employees who are medical marijuana cardholders;
- prohibit employers from refusing to hire applicants who are medical marijuana cardholders, or taking adverse employment action against employees who are medical marijuana cardholders, based either in whole or in part on the individual’s medical marijuana use, and irrespective of impairment;
- prohibit employers from establishing and enforcing drug testing or drug-free workplace policies;
- interfere with federal regulations or restrictions governing drug testing, such as U.S. Department of Transportation regulations;
- provide for an express, legal cause of action for an individual to file a legal claim against an employer “for refusing to hire, discharging, disciplining or otherwise taking an adverse employment action against an individual with respect to hiring, discharging, tenure, terms, conditions or privileges of employment due to the individual’s medical use of medical cannabis”; and
- impact the workers’ compensation premium discount available to Mississippi employers that establish a drug-free workplace program in accordance with state law.
The absence of express employment protection language in the act suggests that Mississippi employers could take adverse employment action against employees with medical marijuana cards with minimal risk of violating the act. However, Mississippi employers may want to remain mindful that even if taking action against employee-cardholders for their medical use of marijuana is lawful under the act, cardholders may pursue disability discrimination and accommodation claims related to their medical use of marijuana. Individuals must have a qualifying medical condition to receive a medical marijuana card, and any of the twenty medical conditions that would make an individual eligible for a card in Mississippi likely would be considered a disability under laws such as the Americans with Disabilities Act (ADA). Courts and administrative agencies around the country have regularly determined that medical marijuana cardholders may assert disability discrimination and accommodation claims under state law and, in some instances, the ADA. Therefore, Mississippi employers should closely monitor this issue going forward.
With marijuana legalization being a new development in Mississippi, court guidance and interpretation of the act and related disability discrimination and accommodation claims will be critical.
Ogletree Deakins will continue to monitor the implementation of the Mississippi Medical Cannabis Act and will provide updates on the Drug Testing and Mississippi blogs. Important information for employers is also available via the firm’s webinar and podcast programs.