Can a Mississippi city fire an employee who tests positive for THC, given that some THC use is now legal under medical cannabis?

Plain-English summary

Florence wanted to know: with the new Mississippi Medical Cannabis Act allowing some legal THC use, can the city still terminate an employee who tests positive for THC?

The AG: yes, if the city's drug testing policy fully implements the Section 71-7 framework and is consistent with the Medical Cannabis Act's employer protections.

Section 71-7-3 authorizes voluntary alcohol and drug testing by public and private employers. The 2016 Jacks opinion confirms municipalities can adopt drug testing policies consistent with Section 71-7-1 et seq.

Section 71-7-7 limits public employer testing: only employees engaged in law enforcement, security, or activities affecting public health or safety can be subject to neutral-selection testing as a condition of employment. The 2017 Danks, 2012 Nowak, and 1996 Myers opinions all confirm this limit. A city cannot test all employees; it can test only those in covered roles.

Required policy elements (Section 71-7-3):

• Written policy provided to employees at least 30 days before testing (Myers 1996)
• Grounds for testing
• Resultant actions for positive results
• List of all drugs tested
• Opportunity to contest accuracy or explain results
• Procedure to confidentially report prescription/nonprescription medications

The Mississippi State Department of Health develops standard language for testing notices (Section 71-7-3(4)). Department regulations (15 Miss. Admin. Code Pt. 16, Subpt. 1, R. 53.4) authorize testing for marijuana, cocaine, opiates, amphetamines, phencyclidine, alcohol, and other controlled substances.

THC and medical cannabis: SB 2095 doesn't interfere with employer testing authority but addresses employer/employee rights at Sections 7, 8, and 10. The city should incorporate those provisions into its policy.

Federal preemption: Section 71-7-29 exempts employers subject to federal drug-testing requirements (CDL drivers, etc.) from the state framework.

What this means for you

For cities and HR directors

Under the opinion, the City "is authorized to institute an alcohol and drug testing policy that aligns with the statutes and the corresponding regulations," and "it is up to the governing authorities of the City to determine the parameters of its policy and the resultant actions that may be taken for a violation of that policy so long as the terms of the statute are fully implemented." Two limits the opinion stresses: a government employer "does not have the authority to require all employees to submit to drug and alcohol screening," only "employees engaged in law enforcement, security, and/or activities affecting the public health or safety" under Section 71-7-7; and if the employer chooses to follow the chapter, it "must implement the statute fully," including the written-policy requirements of Section 71-7-3 (grounds for testing, resultant actions for a positive test, the list of drugs tested, the chance to contest or explain a result, and a procedure to confidentially report prescription and nonprescription medications), with the written policy provided at least thirty days before testing.

For city employees subject to testing

The opinion confirms a city can terminate a covered employee who tests positive for THC, so long as its policy fully implements the Section 71-7 framework. On medical cannabis, the opinion says the Mississippi Medical Cannabis Act (Senate Bill 2095) "does not interfere with an employer's authority to adopt and enforce a drug testing policy," but it points the City to Sections 7, 8, and 10 of the Act, which address "employer and employee rights and responsibilities in context of medical cannabis prescription and use." The opinion does not resolve how those provisions apply to any particular termination, and it notes the office "does not opine on questions of federal law," flagging that Section 71-7-29 exempts employers subject to federal drug-testing requirements.

Common questions

Q: Can a Mississippi city fire an employee who tests positive for THC?
A: Yes, within the statutory framework. The opinion holds the City may institute a testing policy and decide "the resultant actions that may be taken for a violation of that policy so long as the terms of the statute are fully implemented."

Q: Can a city drug-test all of its employees?
A: No. The opinion says a government employer "does not have the authority to require all employees to submit to drug and alcohol screening" and may only require neutral-selection testing of employees "engaged in law enforcement, security, and/or activities affecting the public health or safety" under Section 71-7-7.

Q: What does the city's written policy have to contain?
A: Per the opinion, the Section 71-7-3 written policy must include the grounds for testing, the resultant actions after a positive test, a list of all drugs tested for, the opportunity to contest the accuracy of or explain a positive result, and a procedure to confidentially report prescription and nonprescription medications. The Myers opinion adds that it must be provided to employees at least thirty days before testing.

Q: Does legal medical cannabis change the answer?
A: The opinion says the Medical Cannabis Act "does not interfere with an employer's authority to adopt and enforce a drug testing policy," but it tells the City to bear in mind Sections 7, 8, and 10 of Senate Bill 2095, which address employer and employee rights regarding medical cannabis. It does not decide how those sections apply to a specific case.

Q: What if the position is covered by federal drug-testing rules?
A: The opinion notes it "does not opine on questions of federal law" and that the state statute "does not apply to any employer who is subject to federal law or federal regulations governing the administering of drug and alcohol tests" (Section 71-7-29).

Background and statutory framework

The opinion works through Mississippi's employer drug-testing chapter, Sections 71-7-1 et seq.:

• Section 71-7-3 authorizes voluntary alcohol and drug testing by public and private employers, but requires that an employer who chooses to follow the chapter "implement the statute fully," including the written-policy contents and the confidential medication-reporting procedure of Section 71-7-3(d). Section 71-7-3(4) directs the Mississippi State Department of Health to develop standard language for the required testing notices.
• Section 71-7-7 limits which government employees may be subject to neutral-selection testing as a condition of employment to those "engaged in law enforcement, security, and/or activities affecting the public health or safety."
• Section 71-7-29 provides that the chapter does not apply to an employer subject to federal drug-and-alcohol-testing law or regulation.

The Department of Health's regulation, 15 Miss. Admin. Code Pt. 16, Subpt. 1, R. 53.4, lists drugs an employer may include in its protocols: "marijuana, cocaine, opiates, amphetamines, phencyclidine, alcohol and other controlled substances." On medical cannabis, the opinion identifies the Mississippi Medical Cannabis Act (Senate Bill 2095, 2022 Regular Session) and points to its Sections 7, 8, and 10.

The opinion relies on prior AG opinions: Jacks (a municipality may adopt a drug-testing policy consistent with Section 71-7-1 et seq.), Dees (governmental employers may establish drug and alcohol policies), and Danks, Nowak, and Myers (Section 71-7-7 limits testing to the covered employee categories, with Myers adding the thirty-day written-notice requirement).

Citations and references

Statutes:

• Miss. Code Ann. § 71-7-1 et seq., employer alcohol and drug testing
• Miss. Code Ann. § 71-7-3, voluntary testing requirements
• Miss. Code Ann. § 71-7-7, government employees subject to testing
• Miss. Code Ann. § 71-7-29, federal preemption exemption
• Senate Bill 2095, 2022 Regular Session, Mississippi Medical Cannabis Act (Sections 7, 8, 10)

Regulations:

• 15 Miss. Admin. Code Pt. 16, Subpt. 1, R. 53.4, drugs in testing protocols

Prior AG opinions cited:

• MS AG Op., Dees (Nov. 8, 1996), governmental employer drug/alcohol policies
• MS AG Op., Jacks (Oct. 7, 2016), municipalities adopting drug testing policies
• MS AG Op., Danks (Nov. 17, 2017), Section 71-7-7 limits
• MS AG Op., Nowak (May 29, 2012), Section 71-7-7 limits
• MS AG Op., Myers (Oct. 11, 1996), Section 71-7-7 limits and 30-day notice

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/08/D.Ringer-August-2-2022-Municipal-Drug-Testing.pdf

Original opinion text

August 2, 2022

David Ringer, Esq.
Attorney, City of Florence
Post Office Box 737
Florence, Mississippi 39073

Re: Municipal Drug Testing

Dear Mr. Ringer:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, the City of Florence (the "City") is aware that it is authorized to establish drug and alcohol policies and may, as a condition of employment, require employees to submit to neutral selection drug and alcohol testing. You acknowledge that it is unlawful for an individual to be in possession of a controlled substance, which includes the Schedule I controlled substance Tetrahydrocannabinols ("THC"), but there are exemptions and exceptions which appear to allow the lawful ingestion of THC products in certain forms and under certain circumstances.

Question Presented

May the City have personnel policies under which the City can terminate the employment of a City employee who is given a drug test and tests positive for THC, given that the presence of THC may be indicative of unlawful ingestion of a drug, but the presence of THC may also be indicative of THC in a legal form?

Brief Response

Yes. The City is authorized to institute an alcohol and drug testing policy that aligns with the statutes and the corresponding regulations. It is up to the governing authorities of the City to determine the parameters of its policy and the resultant actions that may be taken for a violation of that policy, so long as the terms of the statute are implemented in full. Miss. Code Ann. § 71-7-3(1).

Applicable Law and Discussion

Mississippi Code Sections 71-7-1 et seq. govern employer alcohol and drug testing policies. Section 71-7-3 authorizes voluntary alcohol and drug testing by public and private employers. See MS AG Op., Jacks at 1 (Oct. 7, 2016) (authorizing municipality to adopt drug testing policy provided it is consistent with provisions of Miss. Code Ann. § 71-7-1 et seq.). Part of the statutory scheme, however, is the mandate that if any employer voluntarily chooses to follow the chapter, the employer must implement the statute fully. Miss. Code Ann. § 71-7-3(1). In your request, you state that this office has previously opined in MS AG Op., Dees at 2 (Nov. 8, 1996) that "governmental employers, including municipalities, [are authorized] to establish drug and alcohol policies and to require as a condition of employment that employees submit to neutral selection drug and alcohol testing." The Dees opinion stops short of discussing the limitations placed on governmental employers when crafting drug testing policies. Section 71-7-7 specifies which government employees are subject to neutral selection drug and alcohol testing as a condition of employment or continued employment. Accordingly, this office has consistently opined that a government employer does not have the authority to require all employees to submit to drug and alcohol screening as a condition of employment or continued employment; the employer may only require neutral selection testing of employees engaged in law enforcement, security, and/or activities affecting the public health or safety. MS AG Op., Danks at 2 (Nov. 17, 2017). See also MS AG Op., Nowak at 3 (May 29, 2012) (reiterating "that drug testing policies adopted by local governing authorities can only apply to employees named in [§ 71-7-7] subsection (2)"); MS AG Op., Myers (Oct. 11, 1996) (explaining governmental employer may not drug test all employees but just those employees under 71-7-7(2), and also must provide employees a written policy statement at least thirty days prior to drug testing.)

The requirements of Section 71-7-3 include the provision of the written policy to employees, which must contain, among other things, the grounds for any drug testing, the resultant actions after a positive test, a list of all the drugs tested for, and the opportunity for the employee to contest the accuracy or explain any positive result. Section 71-7-3(d) in particular, requires that the written policy statement contain the procedure for any employee to confidentially report his or her use of prescription and/or nonprescription medications prior to being tested.

The statute also mandates that the Mississippi State Board of Health (Mississippi State Department of Health) "shall develop standard language for those sections of alcohol and drug testing notices" required by Section 71-7-3(2)(b), (c), and (d). Miss. Code Ann. § 71-7-3(4). The Department of Health's drug and alcohol testing regulations state that an employer may include the following in its alcohol and drug testing protocols: "marijuana, cocaine, opiates, amphetamines, phencyclidine, alcohol and other controlled substances." 15 Miss. Admin. Code Pt. 16, Subpt. 1, R. 53.4.

Your question asks specifically about testing for THC, which, while a Schedule I controlled substance, is also exempted in particular situations and in certain forms. Until recently, except in very limited situations, Mississippi law did not provide for the legal ingestion of THC, one of the main chemical compounds found in the cannabis plant. However, Mississippi has recently enacted the Mississippi Medical Cannabis Act (the "Act"). Senate Bill 2095, 2022 Regular Session. While the Act does not interfere with an employer's authority to adopt and enforce a drug testing policy, there are several sections that speak to the establishment and enforcement of such a policy in light of medical cannabis, and the City should bear them in mind when crafting a drug testing policy. See Senate Bill 2095, 2022 Regular Session §§ 7, 8, 10 (addressing, among other things, employer and employee rights and responsibilities in context of medical cannabis prescription and use).

Ultimately, the City of Florence is authorized to institute an alcohol and drug testing policy that aligns with the statutes and the corresponding regulations. It is up to the governing authorities of the City to determine the parameters of its policy and the resultant actions that may be taken for a violation of that policy so long as the terms of the statute are fully implemented. Miss. Code Ann. § 71-7-3(1).

While this office does not opine on questions of federal law, be aware that the statute does not apply to any employer "who is subject to federal law or federal regulations governing the administering of drug and alcohol tests to any of its employees or applicants for employment." Miss. Code Ann. § 71-7-29.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Misty Monroe
Misty Monroe
Assistant Attorney General