Previously published on March 24, 2022
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On February 2, 2022, the Gov. of Mississippi signed the “Mississippi Medical Cannabis Act” legalizing medical marijuana in the state. The law permits the use of medical cannabis to treat certain debilitating medical conditions, including cancer, Parkinson’s disease, Huntington’s disease, muscular dystrophy, HIV/AIDS, hepatitis, ALS, Crohn’s disease, ulcerative colitis, sickle-cell anemia, Alzheimer’s disease, dementia, post-traumatic stress disorder, autism, cachexia or wasting syndrome, chronic pain, severe or intractable nausea, seizures, intense muscle spasms, among others.
Although the law became effective immediately upon signing by the Governor, medical cannabis will not become available for months.
Specifics of Mississippi SB 2095.
Under the new Mississippi law, medical pot products will include cannabis flower, cannabis extracts, edible cannabis products, beverages, topical products, ointments, oils, tinctures, and suppositories. In addition, it allows approved patients up to 3 ounces of marijuana a month.
Favorable Provisions For Employers Included in Mississippi S.B. 2095:
There are a number of provisions in the new law to protect employers; employees should be aware of these, also. They include:
1. Employers are not required to permit or accommodate the medical use of medical cannabis or to modify any job or working conditions or any employee who engages in the medical use of cannabis or seeks to engage in the medical use of cannabis.
2. Employers are not prohibited from refusing to hire, discharging, disciplining, or otherwise taking adverse employment action against an individual concerning 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 medical use of medical cannabis.
3. Employers are not prohibited from establishing or enforcing a drug testing policy.
4. Employers may discipline employees who use medical cannabis in the workplace or work while under the influence of medical cannabis.
5. The law does not interfere with, impair or impede any federal requirements or regulations such as the U.S. Department of Transportation’s drug and alcohol testing regulations.
6. The law does not permit, authorize or establish an individual’s right to commence or undertake any legal action against an employer for refusing to hire, discharging, disciplining, or otherwise taking adverse employment action against an individual concerning hiring, discharging, tenure, terms, conditions or privileges of employment due to the individual’s medical use of medical cannabis.
7. Employers and their workers’ compensation carriers are not required to pay for or to reimburse an individual for the costs associated with the medical use of cannabis.
8. The law does not affect, alter or otherwise impact the workers’ compensation premium discount available to employers who establish a drug-free workplace program.
9. The law does not affect, alter or otherwise impact an employer’s right to deny or establish legal defenses to the payment of workers’ compensation benefits to an employee based on a positive drug test or refusal to submit to or cooperate with a drug test.
10. The law does not authorize an individual to act with negligence, gross negligence, recklessness, in breach of any applicable professional or occupational standard of care, or to effect an intentional wrong, as a result, in whole or in part, of that individual’s medical use of medical cannabis.
11. The law prohibits smoking and vaping medical cannabis in a public place or a motor vehicle.
12. The law prohibits operating, navigating, or being in actual physical control of any motor vehicle, aircraft, train, motorboat, or other conveyance in a manner that would violate state or federal law as a result, in whole or in part, of that individual’s medical use of medical cannabis.
13. The law does not create an employee’s private right of action against an employer.
Despite these provisions, employers should always review the law to determine whether any revisions to drug and alcohol testing policies or other workplace policies will be necessary.
Key Takeaway For Employees.
The absence of any employment protection language in the new bill suggests that some Mississippi employers may take adverse actions against employees who hold medical marijuana cards. However, even if taking actions against employees is lawful under the act, legal 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. 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). In past legal cases, 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.
Click here to read my blog regarding an employee’s discrimination lawsuit in Arizona for her medical marijuana use.
List of Policies, Procedures, and Other Regulations for Patients.
1. Who can qualify for medical marijuana? Patients who have debilitating medical conditions can be prescribed medical marijuana to help treat their illness. 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.
2. What do patients need to do to get medical marijuana? Patients seeking medical cannabis need written certification from a qualifying practitioner. The certification is good for a year unless the practitioner indicates a shorter period of time. Patients between ages 18-23 generally must have written certifications from two different practitioners from separate medical practices to qualify. (There is an exception for those who registered before they were 18 and the homebound.) Once the patient has the certification, they must then obtain a registry identification card from the Mississippi Department of Health. The state health department has the ultimate oversight authority over the medical cannabis program.
3. Possession and Purchase Limits. The legal limit for possession and purchase is calculated based on “Medical Cannabis Equivalency Units” (MCEUs) of 3.5 grams of flower, up to 100 mg of THC in infused products, and up to one gram of concentrate. Patients may not purchase more than six MCEUs in a week (21 grams, which is less than 3/4 ounce). Patients may not purchase more than 24 MCEUs in a month (84 grams, which is less than 3 ounces). Patients may not possess more than 28 MCEUs at one time (98 grams, which is less than 3.5 ounces). Flower cannot exceed 30% THC. Tinctures, oils, and concentrates may not exceed 60%.
4. Legal protections. Patients can designate a caregiver to assist them with the medical use of cannabis, such as by picking up their cannabis from a dispensary. Caregivers can assist no more than five patients, with exceptions when the caregiver works at a health facility or similar institution that provides care to patients. Delivery and curbside pickup is prohibited. (However, MDOH rules include, “Protocol development for the safe delivery of medical cannabis from dispensaries to cardholders.” Additionally, registered patients are protected from discrimination in child custody disputes and in reference to gun rights.
With this law, Mississippi became the 37th state to adopt a medical marijuana program. View the “Mississippi Medical Cannabis Act” SB 2095 in full here.
Read one of my prior blogs on medical marijuana here.
Visit our Marijuana Law Blog page to stay up to date on key legislation and topics that may affect you!
Contact Experienced Health Law Attorneys for Medical Marijuana Regulatory Matters and Other Health Care Licensing Matters.
The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists, and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting, and/or licensing while complying with Florida law. We can also represent doctors, pharmacies, and pharmacists facing proceedings brought by state regulators or agencies. We represent health-related businesses and medical professionals in all types of licensing and regulatory matters, including state and federal administrative hearings.
To contact The Health Law Firm please call (407) 331-6620 or Toll-Free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.
Sources:
Russo, Kathryn. “Mississippi Enacts Medical Marijuana Law.” The National Law Review. (February 4, 2022). Web.
Gordon, Gracyn. “Medical marijuana bill now becomes law in Mississippi.” WAPT16 ABC. (February 3, 2022). Web.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714; Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.
“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2022 The Health Law Firm. All rights reserved.
