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Court overturned Initiative Measure No. 65, ruling that the state election law governing voter ballot initiatives was out-of-date and unworkable.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:

• require an employer, health insurer, or workers’ compensation insurer to pay or reimburse for costs associated with medical marijuana use;
• require an employer to permit, accommodate, or allow the use of medical marijuana by employees;
• require an employer to modify any job or working conditions of employees who are medical marijuana cardholders;
• prohibit employers from refusing to hire applicants who are medical marijuana cardholders, or taking adverse employment action against employees who are medical marijuana cardholders, based either in whole or in part on the individual’s medical marijuana use, and irrespective of impairment;
• prohibit employers from establishing and enforcing drug testing or drug-free workplace policies;
• interfere with federal regulations or restrictions governing drug testing, such as U.S. Department of Transportation regulations;
• provide for an express, legal cause of action for an individual to file a legal claim against an employer “for 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 due to the individual’s medical use of medical cannabis”; and
• impact the workers’ compensation premium discount available to Mississippi employers that establish a drug-free workplace program in accordance with state law.

Key Takeaways

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.

On August 5, 2021, the Superior Court of Pennsylvania held for the first time that Pennsylvania’s Medical Marijuana Act (MMA) allows an employee to sue his or her employer for taking an adverse employment action based on the employee’s status as a certified user of medical marijuana. In Palmiter v. Commonwealth Health Systems, Inc., et al., the superior court affirmed the decision of the Court of Common Pleas of Lackawanna County, allowing the employee’s MMA claim to proceed. In so holding, the superior court found that the MMA as a whole and the statute’s employment provision, 35 P.S. § 10231.2103(b) (Section 2103), indicate that Pennsylvania’s legislature intended to create an implied private right of action for aggrieved employees. Although this decision clarifies employee rights and employer obligations under the MMA, additional key questions still remain.

Background

In 2017, Pamela Palmiter began working as a medical assistant for Medical Associates of NEPA. In December 2018, Palmiter became licensed to use medical marijuana within the Commonwealth of Pennsylvania due to chronic pain, migraines, and persistent fatigue. Around that time, the defendant hospital acquired Medical Associates of NEPA. Palmiter alleged that, despite this acquisition, her superiors had assured her that she would maintain her job and seniority. Palmiter applied for the position of certified medical assistant with the hospital in January 2019 and was notified that she was “a new employee of [the Hospital].” Later that month, however, Palmiter submitted to a pre-employment drug test and tested positive for marijuana. Although Palmiter claimed that she had shared her medical marijuana certification with the drug-testing laboratory, the hospital allegedly terminated her employment due to the positive drug screen.

Palmiter filed a lawsuit against the hospital in the Court of Common Pleas of Lackawanna County, alleging a violation of the MMA’s Section 2103, wrongful discharge in violation of public policy, and various other claims. The hospital unsuccessfully sought an early dismissal of Palmiter’s MMA and wrongful termination claims. In reaching its decision, the Court of Common Pleas of Lackawanna County determined, as a matter of first impression, that Section 2103 of the MMA contained an implied private right of action that allowed Palmiter to bring suit.

The hospital appealed, arguing that the Pennsylvania General Assembly did not intend to create a private cause of action under the MMA. In support of this argument, the hospital noted that the employment provision of the MMA does not contain any limitations period for an aggrieved employee to bring a claim, nor does it indicate what (if any) damages might be available to an employee. Additionally, the hospital noted that the Pennsylvania Department of Health (DOH) bears sweeping responsibility for implementation and enforcement of the MMA, and argued that the MMA conferred exclusive enforcement jurisdiction to the DOH.

Although the superior court acknowledged that Section 2103 lacks any limitations period or damages provisions, it found that those omissions were not dispositive. As the MMA is remedial in nature, the court found that the statute should be given a liberal construction and viewed Section 2103 as containing “rights-creating language” for the benefit of employees prescribed medical marijuana. The court also found that the DOH did not have exclusive enforcement authority over the MMA, and noted that Section 2103 contains rights for employers as well, such as the ability to discipline employees who are under the influence of medical marijuana in the workplace. As a result of this analysis, the superior court determined that the General Assembly intended to allow employees to bring private suit against their employers for violations of Section 2103. Accordingly, the superior court affirmed the trial court’s decision allowing Palmiter’s MMA claim to proceed.

Finally, the superior court held that the trial court did not err in refusing to dismiss Palmiter’s claim of wrongful discharge in violation of public policy. Although the hospital argued that Pennsylvania had never recognized a claim for wrongful discharge based on the results of a drug test, the superior court opined that medical marijuana should be viewed as more akin to a “prescription drug.” In light of these holdings, the superior court remanded the case to the Court of Common Pleas for further proceedings.

Key Takeaways

Although the Court of Common Pleas and the United States District Court for the Eastern District of Pennsylvania had previously reached similar conclusions as the superior court in Palmiter, this appellate decision of first impression will carry significant weight with state and federal courts across the Commonwealth moving forward. Unfortunately, as MMA cases continue to increase, key questions remain about the statute and the risks to employers, such as the relevant statute of limitations and damages available in Section 2103 claims. As a result, Pennsylvania employers may want to stay abreast of the latest developments in this fast-moving area of the law.

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.

On April 21, 2021, Virginia Governor Ralph Northam signed into law House Bill No. 2312 and Senate Bill No. 1406, moving the date of recreational marijuana legalization in Virginia up to July 1, 2021. The legalization movement, which has increased in momentum in the Commonwealth since Democrats gained a majority in the legislature, culminated in February 2021, when the General Assembly passed recreational legalization measures with an effective date of January 2024. The substance of these measures, which remains largely unchanged in the final legislative text, permits the recreational use of marijuana by adults who are at least 21 years old, allows for wholesale and retail sale of marijuana, and allows home cultivation and personal use of marijuana (up to four plants for personal use). Recent amendments that both chambers of the Virginia General Assembly approved on April 7, 2021, modify the statutory provisions legalizing personal possession, gifting, and personal cultivation of marijuana by adults—moving the effective date up significantly from January 2024, to July 1, 2021.  The remaining portions of the legislation, which address various aspects of the wholesale and retail sale of marijuana, remain set for a delayed effective date of January 1, 2024. The legislation is a watershed moment for marijuana legalization advocates, but it does not expressly prohibit employers from restricting or monitoring the recreational use of marijuana by their employees.

Related Protections for Employees’ Medicinal Use of Cannabis Oil

Virginia employers may want to be mindful of a related measure, House Bill No. 1862, passed in March 2021, and effective July 1, 2021, which prohibits an employer from discharging, disciplining, or discriminating against an employee based on the employee’s lawful use of cannabis oil pursuant to a valid written certification for the use of such oil for the treatment of a diagnosed condition or disease.

Under the new law, “[c]annabis oil” is defined as “any formulation of processed Cannabis plant extract, which may include industrial hemp extract acquired by a pharmaceutical processor … or a dilution of the resin of the Cannabis plant that contains at least five milligrams of cannabidiol (CBD) or tetrahydrocannabinolic acid (THC-A) and no more than 10 milligrams of delta-9-tetrahydrocannabinol [THC] per dose.” Importantly, cannabis oil should not be confused with popular CBD products that are widely available at retail stores without a prescription and purportedly contain extremely low amounts of THC—the chemical associated with marijuana’s psychoactive effects. Because the new law encompasses cannabis oil products that include THC, employers may no longer rely on a positive test for marijuana as the basis for discipline without first evaluating whether the positive result is associated with the protected medicinal use of cannabis oil.

Virginia employers may also want to be mindful of the enumerated exceptions to the protections for medicinal use of cannabis oil by employees. The new cannabis oil law does not:

• “restrict an employer’s ability to take any adverse employment action for any work impairment caused by the use of cannabis oil or to prohibit possession during work hours”;
• “require an employer to commit any act that would cause the employer to be in violation of federal law or that would result in the loss of a federal contract or federal funding”; and
• “require any defense industrial base sector employer or prospective employer, as defined by the U.S. Cybersecurity and Infrastructure Security Agency, to hire or retain any applicant or employee who tests positive for tetrahydrocannabinol (THC) in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test.”

These carve-outs do not expressly address safety-sensitive positions, which are often granted an exception from legislation protecting medical marijuana cardholder status due to the hazardous nature of the work involved and/or dangerous work conditions. Although the new cannabis oil law does not expressly refer to “safety-sensitive” positions, employers required to comply with federal regulations involving safety-sensitive positions (e.g., Department of Transportation-regulated drivers) may be able to rely upon the “violation of federal law” exception. However, the strength and scope of this exception remains unclear, and employers may want to navigate these issues carefully as the new cannabis oil protections are enforced. As the July 1, 2021, effective date draws near, Virginia employers may want to evaluate applicable federal regulations to address potential conflicts that could arise from employees engaging in off-duty recreational marijuana use or in the medicinal use of cannabis oil.

Expanded Prohibition on Applicant Questions Related to Marijuana Crimes

Virginia’s marijuana legalization legislation modifies the existing ban on requiring a Virginia job applicant to disclose information related to an arrest, criminal charge, or conviction for simple possession of marijuana (i.e., possession of less than one ounce of marijuana), which was decriminalized on May 21, 2020. The recent modification expands the prohibition to include requests for information from an applicant related to any arrest, criminal charge, or conviction for the sale, transfer, distribution, or possession with the intent to sell, give, or distribute less than one ounce of marijuana. Virginia employers may want to review their recruitment and hiring procedures to ensure compliance with the expanded prohibition.

Sweeping Changes for Recreational Marijuana Use in Virginia

The remaining portions of Virginia’s recreational marijuana legislation do not directly impact employers, but the following broad changes will certainly affect Virginia enterprises operating (or preparing to operate) in the marijuana industry:

• legalization of the possession of marijuana (up to one ounce) by adults who are 21 years of age and older;
• establishment of the Virginia Cannabis Control Authority and a regulatory structure for the cultivation, manufacture, wholesale distribution, and retail sale of marijuana and marijuana products;
• a grant of authority to Virginia localities to establish licensing requirements for retail and wholesale marijuana establishments within such localities;
• a grant of additional authority to Virginia localities to establish licensing requirements for the home cultivation of marijuana for personal use; and
• creation of tax revenue (estimated in the hundreds of millions of dollars) at the state and local levels.

The legislation also takes aim at entrenched systemic inequities affecting historically marginalized communities (particularly the African-American community) that have been “disproportionately policed for marijuana crimes” through drug-related police encounters, arrests, and convictions. These social provisions include the following:

• Preferential access to retail and manufacturing licenses for
  • individuals (or their immediate family members) who have been convicted of marijuana-related crimes;
  • graduates of Virginia’s historically black colleges and universities; and
  • individuals living in “economically distressed” neighborhoods or neighborhoods that have experienced disproportionately high rates of marijuana-related arrests.
• Elimination of civil and criminal penalties for possession of marijuana (up to one once) by adults who are 21 years of age or older
• Requirement that the Virginia state police determine, by July 1, 2025, which marijuana-related misdemeanor offenses will be automatically expunged from the state’s record system
• Permission for petitions for expungement of certain records of marijuana-related felony convictions (and juvenile delinquency adjudications)
• Limitations on the dissemination of criminal record information relating to certain marijuana-related offenses
• Investment in “educational and vocational resources for historically marginalized persons”
• Creation and investment in social programs focused on curbing substance abuse and promoting health and wellness initiatives

Worker Protections Added to Final Legalization Bill

The final legislative text also includes provisions that authorize the newly established Virginia Cannabis Control Authority to suspend or revoke a licensee’s marijuana-related business license if the licensee

• interferes with “union organizing efforts by employees”;
• fails to pay employees “prevailing wages as determined by the U.S. Department of Labor”; or
• classifies “more than 10 percent of its workers as independent contractors” when such workers are not “owners in a worker-owned cooperative.”

The inclusion of labor and employment–related provisions in marijuana legalization legislation appears to reflect Governor Northam’s interest in using the marijuana legalization measures to bolster protections for employees and organized labor. Virginia employers operating (or planning to operate) in the marijuana industry may want to review their current labor, wage, and classification procedures to ensure compliance with these new guidelines.

Key Takeaways

Virginia’s legalization measures place the state among the 16 states and the District of Columbia have legalized marijuana for adult recreational use. Vermont, Illinois, and New York have similarly used legislative action to regulate and tax the recreational use and retail sale of marijuana. As the wave of legalization continues to swell, employers throughout the United States may want to monitor closely state legislative activity for marijuana policy changes.

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.

On May 6, 2021, the Alabama legislature approved a medical marijuana legalization bill. Senate Bill (SB) 46, more commonly known as the Darren Wesley ‘Ato’ Hall Compassion Act, will now go to Governor Kay Ivey for final approval. Governor Ivey has not indicated that she will veto the bill, although a spokesperson for Governor Ivey has stated that she “look[s] forward to thoroughly reviewing it.”

If Governor Ivey signs the bill, it will go into effect immediately.

The bill lists 16 medical conditions and categories of conditions for which an individual would be eligible for a medical marijuana card in Alabama, such as Crohn’s disease, depression, epilepsy, panic disorder, post-traumatic stress disorder, or “any condition” causing chronic pain where other treatment, including with opioids, have been ineffective.

Notably, the bill defines “medical cannabis” to exclude products that can be smoked and vaped, and marijuana-infused food products and to include other products such as oral tablets, gels, oils, creams, patches, or lozenges.

Importantly, unlike many other state medical marijuana legalization laws, the bill does not contain any express employment protections for medical marijuana cardholders. Instead, the bill’s language is employer-friendly in nature. With respect to employment, the bill specifically states that the bill does not:

• Require an employer to permit, accommodate, or allow the use of medical marijuana;
• Require an employer to modify job or work conditions for applicants or employees who use medical marijuana;
• Prohibit employers from taking adverse employment action against medical marijuana cardholders, based either wholly or in part on the individual’s medical marijuana use, and irrespective of impairment;
• Prohibit employers from establishing and enforcing drug testing, drug-free workplace, or similar policies;
• Prohibit employers from requiring medical marijuana cardholders to notify employers of medical marijuana cardholder status;
• Interfere with federal regulations or restrictions, such as U.S. Department of Transportation regulations; and
• Provide for an express, legal cause of action for an individual to file a legal claim against an employer.

Key Takeaways

In the absence of express employment protection language within the bill, employers likely may take adverse employment action against medical marijuana cardholders with minimal risk of violating the bill. However, Alabama employers may want to remain mindful that even if taking action against cardholders is lawful, cardholders may pursue disability discrimination and accommodation claims related to their marijuana use. Individuals must have a qualifying medical condition in order to be authorized to receive a medical marijuana card, and any of the 16 medical conditions that would make an individual eligible for a card likely would be considered a disability under disability discrimination 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 claims under state disability discrimination laws and, in some instances, the ADA. Therefore, Alabama employers should closely monitor this issue going forward.

With marijuana legalization being a new development in Alabama, court guidance and interpretation of the bill 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.