It looks like medical marijuana products may be available in the Magnolia state later this fall. As expected, it will be highly regulated and can only be used by registered, qualified patients who have been diagnosed with a specific condition listed within the law by a medical practitioner. So where does that leave an employer who may have workers who want to take advantage of this new law? Mississippi’s statute has some clearly articulated positions on what employers may or may not do when it comes to medical weed use.
Do I Have to Let an Employee Use Marijuana?
The Mississippi medical marijuana law has a specific provision that employers are NOT required to allow the medical use of cannabis on the job or to modify any job description of an employee who wants to use medical marijuana on the job. The only possible wrinkle with this might be how the ADA might affect that provision. Many of the specific conditions that would allow a Mississippian to qualify for medical cannabis use could also qualify as a “disability” under the ADA which would trigger a dialogue on possible accommodation. It is unclear whether use of medical cannabis would be a valid accommodation, especially in light of the statutory exemption for employers under the Mississippi law. The Mississippi law specifically allows an employer to refuse to hire an applicant or to take an adverse employment action against an employee who used medical marijuana on the job, regardless of whether the individual was actually impaired. Employers under the state law can also discipline an employee for use of marijuana on the job. Those provisions appear to provide employers with some cover to show that marijuana use may not be a valid ADA accommodation. However, we will have to see how a court handles that.
Can I Still Drug Test My Employees?
Under the Mississippi law, you certainly can still have a drug testing policy. And, as we see above, the Mississippi law would allow an employer to refuse to hire, discipline or fire an employee for marijuana use, even if prescribed by a medical provider. You may want to talk to your testing service of Medical Review Officer about whether to have employees disclose the use of medical marijuana like they would any other prescription medication. Employers should continue to follow non-discriminatory policies in administering the drug tests and keep an eye on whether you need to consider a reasonable accommodation.
Can an Employee Sue Me for Not Letting Them Use Marijuana?
Not under this law. The Mississippi law specifically states that there is no private right of action for an employee to sue his or her employer for refusing to hire, discharging or taking any other adverse employment action against an individual who used medical marijuana. As stated above, it is unclear how the ADA may play into this in Mississippi. Past courts have held that since the federal Controlled Substances Act still bans marijuana use, medical marijuana use is not a valid accommodation. It will be interesting to see if attitudes may change.
