Balch & Bingham LLC: Employers Review Policies As Medical Cannabis Sales Begin In Mississippi

Ashley Eley Cannady, J. Russell Dumas ………Balch & Bingham LLP

With the first legal sales of medical cannabis recently occurring in Mississippi, employers should again take time to review (or familiarize) themselves with how Mississippi’s recent action in legalizing medical cannabis affects employers. On February 2, 2022, Governor Tate Reeves signed the Mississippi Medical Cannabis Act (“MMCA”) into law. Nearly a year after being signed into law, the MMCA finally saw its first sales on January 25, 2023, in Brookhaven, Mississippi, and Oxford, Mississippi, according to the Associated Press.

Now that the Act is in full bloom, employers must ensure they are well-positioned and prepared to handle the eventual reality of employing or interviewing a medical cannabis card holder or user. According to the most recent Mississippi Department of Health report, 2,311 applications for medical cannabis cards had been submitted with 1,321 being approved, as of December 2022. Those numbers should steadily grow.

To be blunt, the MMCA is highly favorable to employers, much more so than most states. Employers can take comfort in the following key provisions:

  1. Ban use – Employers are not required to permit, accommodate, or allow the use of medical cannabis.
  2. No modifications – Employers are not required to modify the job or working conditions of employees using medical cannabis.
  3. Refusal to Hire/Adverse Action – Employers are permitted to refuse to hire an applicant and can take adverse action against employees, up to and including termination. The employee’s impairment or lack of impairment does not affect this right.
  4. Discipline – Employers are permitted to discipline employees who ingest medical cannabis in the workplace or work under the influence of medical cannabis.
  5. Testing – Employers can establish or continue to use a drug testing policy.
  6. No Private Right of Action – Employers cannot be sued for taking an adverse action against an employee for use of medical cannabis.
  7. Workers’ Compensation Discount– Employers can maintain their premium discount if they have established a drug-free workplace program.
  8. Post-Accident Testing – Employers can still deny workers’ compensation benefits if an employee tests positive for medical cannabis post-accident or refuses to be tested for medical cannabis following an accident.

This now leaves employers asking themselves: what does this mean for me and should I do anything differently?

Generally, thanks to this employer-friendly law, as highlighted above, the answer is employers can keep on rollin’ and maintain the status quo. However, employers can also examine whether there is any benefit to updating their policies and procedures to consider allowing the use of medical cannabis by medical-cannabis-card-carrying employees in certain circumstances.

These considerations include:

  • Do you plan to take full advantage of the protections provided by the MMCA?
  • Should you maintain your zero-tolerance policy?
  • Will you modify job or working conditions for medical cannabis users?
  • Will you allow employees to use medical cannabis outside of work so long as they are not under the influence while on duty?
  • Will you treat medical cannabis the same as other scheduled prescription drugs?
  • Will you update your current employee drug testing policy?
  • Will you require employees to disclose whether they have received a medical cannabis card?
  • Will you require employees to disclose whether they have used medical cannabis?
  • Will you treat employees who test positive for using cannabis differently depending on whether they have a medical cannabis card or not?
  • What action or discipline will you take upon a finding that an employee uses cannabis?
  • Will up update your pre-employment screening policy?
  • Are you willing to forfeit your drug-free workplace status?

The answers to these questions will vary greatly depending on the employer’s industry, the nature of the employer’s business, the workplace and environment, the presence of the public, the machinery or transportation used by employees, the job duties of employees, the applicability of regulations requiring testing, and the position occupied by each employee. After thoughtful consideration, including seeking legal counsel, is given, the plan adopted should be reflected in all relevant employment documents (i.e. handbooks, policies, procedures), communicated to employees, and thereafter applied uniformly.

On the other hand, it is critical for employers, at least at this point, to recognize they can simply take advantage of the MMCA’s employer-friendly stance, while also monitoring for future developments that actually require action by employers. For example, employers should remain cognizant of the Americans with Disabilities Act and the Family Medical Leave Act and avoid taking any action based on the underlying condition itself that allowed the employee to receive a medical cannabis card and not the actual use alone. Additionally, employers should remain aware of the federal government’s position on the criminalization of cannabis.

Unlike employers in many of the thirty-seven other states that currently allow for the use of medical cannabis, Mississippi employers can avoid getting in the weeds regardless of the position they take.

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