The 2020 state legislative sessions are underway across the country and a hot topic in many states is medical marijuana. As discussed last year, Alabama was poised to become the first Deep South state to enact a medical marijuana law. The Alabama legislature ultimately tabled the issue until the 2020 legislative session.

Now, the Alabama Legislature is considering Senate Bill 165 (AL-SB165), which would create the Compassion Act to legalize medical marijuana in Alabama. Not to be outdone, the Kentucky legislature is considering House Bill 136 (KY-HB136), which would legalize medical marijuana in Kentucky. Finally, Mississippi voters will soon have the opportunity to vote on whether to amend the state constitution to allow medical marijuana, following a successful campaign in which “Mississippians for Compassionate Care” submitted a sufficient number of signatures to place the proposed initiative (MS Initiative Measure No. 65) on the November 2020 ballot. While it is impossible to predict at this time whether these laws ultimately will go into effect, there appears to be bipartisan support amongst lawmakers, and significant public support, in each of these states for the passage of these laws.

As is always the case with medical marijuana legalization laws, the statutory language is extremely important. This article focuses on the proposed language of these laws as of March 2020. Also, while not discussed in this article, Florida employers may also want to be familiar with possible amendments to the Sunshine State’s existing medical marijuana laws.

Alabama Medical Marijuana Legislation

AL-SB165 lists 16 medical conditions and categories of conditions for which an individual would be eligible for a medical marijuana card in Alabama, such as anxiety or panic disorder, Autism Spectrum Disorder, Crohn’s disease, epilepsy, fibromyalgia, HIV/AIDS, Post Traumatic Stress Disorder, sleep disorders, terminal illnesses, or “any other medical condition” approved by the Alabama Medical Cannabis Commission.

Notably, medical marijuana under AL-SB165 excludes smokeable marijuana or marijuana-infused food products (e.g., brownies). Instead, AL-SB165 contemplates medicinal marijuana in other forms such as lozenges, capsules, gels, oils, creams, patches, or vaporized liquids.

Importantly, at this time, AL-SB165 does not contain any statutory employment protections for medical marijuana cardholders (i.e., an anti-discrimination provision). With respect to employment, AL-SB165 states, among other provisions:

This chapter does not do any of the following:

…

(2) Require any employer to permit, accommodate, or allow the use of medical cannabis, or to modify any job or working conditions of any employee who engages in the use of medical cannabis or for any reason seeks to engage in the use of medical cannabis.

(3) Prohibit any employer from 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 as a result, in whole or in part, of that individual’s use of medical cannabis, regardless of the individual’s impairment or lack of impairment resulting from the use of medical cannabis.

(4) Prohibit or limit the ability of any employer from establishing or enforcing a drug testing policy, including, but not limited to, a policy that prohibits the use of medical cannabis in the workplace or from implementing a drug-free workforce program ….

(5) Prohibit or limit any employer from adopting an employment policy requiring its employees to notify the employer if an employee possesses a medical cannabis card.

(6) Interfere with, impair, or impede, any federal restrictions on employment, including, but not limited to, regulations adopted by the United States Department of Transportation ….

(7) Permit, authorize, or establish any individual’s right to commence or undertake any legal action 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 use of medical cannabis.

Kentucky Medical Marijuana Legislation

KY-HB136 lists 19 medical conditions and categories of conditions for which an individual would be eligible for a medical marijuana card in Kentucky, such as Autism Spectrum Disorder, chronic pain, Crohn’s disease, epilepsy, glaucoma, HIV/AIDS, inflammatory bowel disease, multiple sclerosis, opioid use disorder, Post Traumatic Stress Disorder, and several all-encompassing categories such as “any other disease or medical condition” approved by the Kentucky Department of Alcoholic Beverage and Cannabis Control, or “any other disease or medical condition” that a medical practitioner believes should be treated with medical marijuana.

KY-HB136 also states that individuals who are registered medical marijuana cardholders from other states will receive the benefits of KY-HB136, and be considered “visiting” qualified patients.

Like Alabama, KY-HB136 does not contain any statutory job protections for medical marijuana cardholders. With respect to employment, KY-HB136 states, among other provisions:

Nothing in … this Act shall:

(a) Require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, distribution, sale, or growing of medicinal marijuana in the workplace;

(b) Prohibit an employer from implementing policies promoting workplace health and safety by restricting the use of medicinal marijuana by employees;

(c) Prohibit an employer from including in any contract provisions that prohibit the use of medicinal marijuana by employees;

(d) Permit a cause of action against an employer for wrongful discharge or discrimination;

…

(f) Prohibit an employer from establishing and enforcing a drug testing policy, drug-free workplace, or zero-tolerance drug policy.

Mississippi Ballot Initiative on Medical Marijuana

Due to its status as a ballot initiative rather than formal legislation, MS Initiative Measure No. 65 is less cumbersome than AL-SB166 or KY-HB136.

MS Initiative Measure No. 65 lists 23 medical conditions and categories of conditions for which an individual would be eligible for a medical marijuana card in Mississippi, such as autism, cancer, chronic pain, epilepsy, HIV/AIDS, multiple sclerosis, Post Traumatic Stress Disorder, spinal cord disease, or “another medical condition” that a treating physician believes should be treated with medical marijuana.

MS Initiative Measure No. 65 does not contain constitutional job protections for medical marijuana cardholders. With respect to employment, MS Initiative Measure No. 65 states:

(1) Except as otherwise provided for in this article, nothing in this article shall:

…

(d) Require accommodation for the use of medical marijuana or require any on-site use of medical marijuana in … employment.

Key Takeaways

Courts in other jurisdictions have routinely declined to find statutory violations of medical marijuana legalization laws in the absence of an antidiscrimination provision. Thus, in the measures’ current form, it appears unlikely that courts in Alabama, Kentucky, or Mississippi would determine that an employer violated AL-SB165, KY-HB136, or MS Initiative Measure No. 65 by taking adverse employment action against a job applicant or employee based on a failed drug test due to medical marijuana—though employers may want to focus on the failed drug test and not the reason (i.e., marijuana) for the failed test.

Nonetheless, Alabama, Kentucky, and Mississippi employers may want to keep in mind a separate concern when handling job applicants and employees who are medical marijuana cardholders. Because an individual would have to have one of the enumerated medical conditions to qualify for a medical marijuana card, each of which could be a disability under the Americans with Disabilities Act or applicable state disability discrimination laws, employers may want to be cognizant of the possibility of marijuana-related disability claims based on a medical-marijuana cardholder’s underlying medical condition. Employers may recognize that the disability concerns associated with medical marijuana are the same as those associated with prescription painkillers.