On February 2, 2022, Mississippi joined 36 other states by enacting the
Marijuana Medical Cannabis Act. The law permits cannabis treatment for severe
and life-altering illnesses such as cancer, AIDS, and Alzheimer’s. Specific
language in the bill also allows for medical patients who have “debilitating medical
conditions.”
What the law did not do was enter the work-place or effect employer-employee
relationships. The law (under § 7 titled Limitations) states the law shall not be
construed to do any of the following:
- Require managed care, health benefit plans, private health insurers,
employers, property and casualty carriers, or workers’; compensation insurers
provide coverage or pay for medical use of cannabis; - Require any employer to permit, accommodate or allow use of medical
cannabis, or to modify any job or working condition of any employee who
uses or seeks to use medical cannabis; - Prohibit employers from refusing to hire, or discharging, disciplining, or
otherwise taking adverse employment action against an individual with
respect to hiring, firing, tenure, terms, conditions, or privileges of
employment, for use of medical cannabis – regardless of actual impairment
resulting from use of medical cannabis; - Prohibit or limit the ability of any employer from establishing or enforcing a
drug-testing policy; - Without using the word “immunity” – the law does not permit or establish
any right for an employee to take legal action against an employer for taking
adverse employment actions against an employee for use of medical
cannabis; - Alter the worker’s; compensation premium discount available to employers
who establish a drug-free workplace program in accordance with Section 71-
3-201 et seq., or, otherwise alter the denial of worker’s compensation
benefits for a post-accident positive marijuana test under Section 71-3-7 and
Section 71-3-121.
In my opinion the law was clearly intended not to affect the workplace
whatsoever and effectively (other than granting immunity) removes
use of medical cannabis as a workplace issue.
An employer may allow its employees to use medical cannabis. Doing so raises
a couple of questions. Based upon the amendments to other statutes under the new law, if
that allowed employee is injured and tests positive for marijuana after medical use,
then the employee is treated as a non-medical marijuana user under the Mississippi
Worker’s Compensation Act – in spite of employer permission. I could see a situation where an
employer allowed use and then after injury the employer’s workers compensation carrier
denied the claim. The employee will raise an ‘estoppel argument’ and could
put the employer and its workers compensation carrier at odds over the
“intoxication defense”. Allowing-employers should address coverage with their
insurance carriers if giving permission to use
medical cannabis. An allowing-employer should also revise its drug testing policy
to state as much to remain in compliance with both the “Drug-Free Workplace”
law (Miss. Code§ 71-3-201, et. seq.) and the employment-based drug and alcohol
testing laws. (Miss. Code§ 71-7-1, et. seq.) My suggestion is for an employer who
makes the decision to allow medical cannabis to get legal advice on these and other
issues.
Full text of the law is here: https://legiscan.com/MS/bill/SB2095/2022
This submission was prepared by Tristan R. Armer, an attorney Heidelberg
Steinberger, P.A., a law firm dedicated to representing employers, business and
entrepreneurs, in litigation and as ‘outside general counsel’ for employment,
liability and transactional matters. If you or your business has questions about the
Marijuana Medical Cannabis Act and employees in the workplace, please contact
Tristan R. Armer, by emailing tarmer@hs-lawfirm.com or call 228-762-8021.