By: Kyle Williams and Chris Fontan
After months of political maneuvering, including a state-wide ballot initiative and Supreme Court challenge, Mississippi has joined 36 other states in enacting its own medical marijuana program. On February 2, 2022, Governor Tate Reeves signed Senate Bill 2095, the Mississippi Medical Cannabis Act, (the “Act”) into law. The Act regulates the cultivation, processing, and dispensing of medical cannabis and authorizes physicians, certified nurse practitioners, physician’s assistants, and optometrists to certify patients for cannabis use—up to three ounces per month—to treat numerous “debilitating medical conditions.”
The Mississippi Department of Health will administer the program outlined within the Act and will enact regulations governing medical cannabis cultivators, processors, transporters, medical practitioners, and testing and research facilities. The Act tasks the Department of Revenue with regulating and licensure of cannabis dispensaries.
As more Mississippians are issued “written certifications” to obtain and use medical cannabis, employers will be forced to navigate this emerging area of the law. As written, the Act contains many provisions favorable for the state’s employers. For example, the 445-page Act in no way prohibits or limits an employer’s ability to establish or enforce a drug testing policy, nor does it require an employer to allow or accommodate the use of medical cannabis or to modify any job or working conditions of any employee who engages in the use of medical cannabis. More specifically:
- Employers are not prohibited from refusing to hire, discharging, disciplining, or otherwise taking adverse employment action against an individual with respect to terms, conditions, or privileges of employment as a result of that individual’s medical use of medical cannabis—regardless of the individual’s impairment or lack of impairment resulting from the medical use of medical cannabis.
- Similarly, the Act does not create a private right of action by an employee against an employer for refusing to hire, discharging, disciplining or otherwise taking an adverse employment action against that employee with respect to terms, conditions or privileges or employment due to the individual’s medical use of medical cannabis.
- Employers may discipline employees who use medical cannabis in the workplace or who work while under the influence of medical cannabis.
However, employers must comply with other state and federal laws that might be implicated.
The Act also amends Mississippi’s workers’ compensation laws to account for medical cannabis use. Notably, the Act does not affect, alter or otherwise impact the workers’ compensation premium discount available to employers who establish a drug-free workplace program in accordance with Miss. Code §§ 71-3-201 et seq. In addition, the Act does not impact an employer’s right to deny or establish legal defenses to the payment of workers’ compensation benefits to an employee on the basis of a positive drug test or refusal to submit to or cooperate with a drug test, as provided under Miss. Code §§ 71-3-7 and 71-3-121.
We will continue to monitor the implementation of Mississippi’s new medical cannabis program and the forthcoming regulations being promulgated by the Departments of Health and Revenue. If you need Labor & Employment counsel, please contact any member of Brunini’s Labor & Employment Practice Group.