On February 2, 2022, Mississippi became the latest state to create a medical marijuana law. The Mississippi Medical Cannabis Act (MMCA) became effective immediately upon Governor Tate Reeves's signature. Prior to enacting the MMCA, Mississippi allowed only the limited use of cannabidiol (CBD) oil, under Harper Grace's Law. Miss. Code Ann. § 41-29-136. Although Mississippi now authorizes the use of medical cannabis to treat certain debilitating medical conditions, the new law contains no employment protections for workers that engage in such use. In fact, the law contains provisions explicitly stating that employers need not facilitate, accommodate, or otherwise allow for an employee's use of medical cannabis, and cannot be sued for taking employment actions on the basis of such use.

Covered Conditions

Under the MMCA, the use of medical cannabis is permitted for individuals who suffer from "debilitating medical conditions," as defined in section 2 of the Act, which include, but are not limited to, autism; cancer; Huntington's disease; muscular dystrophy; glaucoma; Parkinson's disease; Alzheimer's disease; positive status for human immunodeficiency virus (HIV); acquired immune deficiency syndrome (AIDS); post-traumatic stress disorder; chronic, terminal, or debilitating diseases or medical conditions or their treatment that produce cachexia or wasting syndrome, chronic pain, severe or intractable nausea, seizures, or severe and persistent muscle spasms; and any other serious medical condition or its treatment designated for coverage by the Mississippi Department of Health as provided for in the MMCA.

Legislative Debate Leads to Employer Protections

In an official statement after the MMCA was enacted, Governor Reeves commented that although "[t]here is no doubt that there are individuals in [Mississippi] who could do significantly better if they had access to medically prescribed doses of cannabis," there are also "those who really want a recreational marijuana program that could lead to more people smoking and less people working, with all of the societal and family ills that that brings." Governor Reeves went on to declare that his "goal from Day 1 . . . has been to allow for the former and do everything in [his] power to minimize and mitigate - though knowing it is impossible to eliminate - the likelihood of the latter," and that he has "made it clear that the bill on [his] desk [was] not the one that [he] would have written."

Nonetheless, Governor Reeves cited certain "improvements" that were made to the bill that ultimately led to his endorsement after more than three years of legislative debate. Included in these improvements were explicit protections for employers from liability with respect to the employment (or non-employment) of medical cannabis users.

The new law provides that it shall not be construed to:

• "Require any employer to permit, accommodate, or allow the ... use of medical cannabis, or to modify any job or working conditions of any employee who engages in the medical use of medical cannabis or who for any reason seeks to engage in the medical use of medical cannabis";
• "Prohibit any employer from 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 as a result, in whole or in part, of that individual's medical use of medical cannabis, regardless of the individual's impairment or lack of impairment resulting from the ... use of medical cannabis";
• "Prohibit or limit the ability of any employer from establishing or enforcing a drug testing policy"; or
• "Interfere with, impair or impede any federal restrictions or requirements on employment or contracting, including, but not limited to, regulations adopted by the United States Department of Transportation in Title 49, Code of Federal Regulations."

The MMCA specifically provides, however, that an employer may not be penalized or denied any benefit under state law for employing a medical cannabis cardholder.

Currently, Mississippi maintains a workers' compensation premium discount program available to employers that establish a drug-free workplace program that also limits the payment of workers' compensation benefits to employees who test positive or refuse to submit to or cooperate with a drug test. The MMCA does not alter that workers' compensation premium discount law.

Finally, the MMCA provides specifically that it does not create a private cause of action by an employee against an employer.

Communicating Policy Changes

Although the MMCA does not provide any workplace protections for medical cannabis users, Mississippi employers may want to consider whether to affirmatively communicate with their workers and even applicants as to whether the adoption of the MMCA will have any impact on the employer's policy. If an employer's policy needs to be updated to reflect actual practice, this new law may make that review more urgent.

Posted: February 21, 2022