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February 9, 2022
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Court overturned Initiative Measure No. 65, ruling that the state election law governing voter ballot initiatives was out-of-date and unworkable.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:
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’ Drug Testing Practice Group will continue to monitor developments related to marijuana laws in the workplace and will provide updates on the Drug Testing blog. Important information for employers is also available via the firm’s webinar and podcast programs.
Further information on federal, state, and major locality marijuana laws and related issues affecting the workplace is available in the firm’s OD Comply: Marijuana subscription materials, which are updated and provided to OD Comply subscribers as the law changes.