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 municipal attorneys
Building a city drug testing policy:
- Coverage: Identify positions in law enforcement, security, or activities affecting public health/safety. Test only those (Section 71-7-7).
- Written policy with all required elements:
- Grounds for testing
- Consequences of positive results (e.g., termination)
- List of drugs tested (typically marijuana/THC, cocaine, opiates, amphetamines, PCP, alcohol)
- Procedure for contesting/explaining results
- Procedure for confidentially disclosing prescription medications - Distribution: Provide written policy to covered employees at least 30 days before testing
- Implementation: Use neutral selection (random, post-incident, post-offer); not target individuals
- Medical cannabis carve-outs: Review SB 2095 Sections 7, 8, 10 for employer/employee rights; incorporate as appropriate
- Federal compliance: Identify positions subject to federal testing (DOT, etc.); use federal procedures for those positions per Section 71-7-29
For human resources directors
Implementation steps:
- Identify covered positions on a list (police, fire, public works in safety-sensitive roles, water plant operators, etc.)
- Distribute the written policy with acknowledgment forms
- Establish neutral-selection procedures (random number generator, third-party administrator, etc.)
- Establish confidential medication-reporting procedure
- Establish positive-result review procedure (medical review officer review; opportunity to explain)
- Document all steps for each test
For positive THC results: ask whether the employee has a valid medical cannabis use under SB 2095. If yes, evaluate under SB 2095's framework. If no, apply the policy's termination provisions.
For city employees in covered positions
Know the policy:
- Are you in a covered position (law enforcement, security, public health/safety)?
- Has the city given you the written policy at least 30 days before testing?
- Does the policy specify the consequences of positive results?
- Did you confidentially report any prescription or medical cannabis use before testing?
For medical cannabis: SB 2095 has employer-protection provisions, but it also has employee protections. If you have a valid medical cannabis card and disclose it, your rights under SB 2095 apply. Consult an employment lawyer if you're terminated after disclosure.
For police chiefs and department heads in covered functions
Drug testing of officers is well-established under Section 71-7-7. Maintain consistent procedures:
- Pre-employment testing
- Random testing (with documented neutral selection)
- Post-incident testing (after vehicle accidents, weapons discharges, etc.)
- Reasonable-suspicion testing (with documented basis)
Ensure the department's protocols implement Section 71-7-3's full framework.
For employment lawyers representing terminated employees
Defenses to challenge termination:
- Not in covered position: if the employee wasn't in law enforcement/security/safety-sensitive work, Section 71-7-7 limits the city's testing authority
- Procedural failure: policy not provided 30 days in advance; medication-reporting procedure missing; no opportunity to contest
- Medical cannabis use: SB 2095 protections may apply if the employee has a valid card and disclosed
- Federal preemption: if Section 71-7-29 applies, federal procedures govern
Common questions
Q: What is Section 71-7-3?
A: Mississippi statute authorizing voluntary alcohol and drug testing by public and private employers. Has detailed procedural requirements that must be fully implemented if an employer chooses to use the framework.
Q: What is Section 71-7-7?
A: Mississippi statute specifying which government employees can be subject to drug testing as a condition of employment. Limits to law enforcement, security, and activities affecting public health/safety.
Q: What is the Mississippi Medical Cannabis Act?
A: SB 2095 (2022 Regular Session) authorizing medical cannabis use. Sections 7, 8, and 10 address employer/employee rights regarding medical cannabis.
Q: Can a city test an employee who works in finance or general administration?
A: Generally no. Those positions typically aren't in law enforcement, security, or activities affecting public health/safety. Section 71-7-7 limits coverage.
Q: Does this affect drug testing of teachers or school district employees?
A: School districts have their own framework. Section 71-7-7's "activities affecting the public health or safety" may include certain school positions (school resource officers, drivers). Other school employees may not be subject to mandatory testing.
Q: What about volunteer firefighters?
A: Volunteers in safety-sensitive functions are likely covered as activities affecting public health/safety. Apply the framework consistently.
Q: Can an employee with a valid medical cannabis card be fired for a positive THC test?
A: SB 2095 has specific employer-rights provisions. The Act does not require employers to accommodate THC use, even with a card. But there are protections against discrimination. Read SB 2095 Sections 7, 8, 10 carefully and consult employment counsel.
Q: What's "neutral selection"?
A: A randomized selection process that doesn't target specific employees. Random number generators or third-party administrators are common. Selecting based on suspicion alone may not qualify as neutral selection.
Q: What about post-accident testing of city vehicle drivers?
A: Post-accident testing of CDL drivers is governed by federal DOT regulations (Section 71-7-29 exemption). For non-CDL drivers, the city's policy can include post-accident testing if drafted properly.
Q: What if the employee fails the test but disputes the result?
A: The policy must include opportunity to contest/explain. A medical review officer typically reviews positive results, considers prescription/medical explanations, and confirms or reverses the result.
Background and statutory framework
Mississippi's framework for employer drug testing:
Authority and limits:
- Section 71-7-3: voluntary employer testing; specific procedures
- Section 71-7-7: government employees subject to testing limited to law enforcement, security, activities affecting public health/safety
- Section 71-7-29: federal preemption for employees subject to federal testing requirements
Required policy elements (Section 71-7-3):
- Grounds for testing
- Consequences of positive results
- Drugs tested
- Procedure for contesting/explaining results
- Procedure for confidential medication reporting
- 30-day advance notice (per 1996 Myers opinion)
State Health Department regulations:
- 15 Miss. Admin. Code Pt. 16, Subpt. 1, R. 53.4: drugs that may be included (marijuana, cocaine, opiates, amphetamines, phencyclidine, alcohol, other controlled substances)
- Standard language for testing notices (Section 71-7-3(4))
Medical Cannabis Act framework:
- SB 2095, 2022 Regular Session
- Sections 7, 8, 10: employer and employee rights regarding medical cannabis
- Does not interfere with employer testing authority generally
- Provides specific protections and limitations
Key prior opinions:
- MS AG Op., Dees (Nov. 8, 1996): governmental employers can establish drug/alcohol policies
- MS AG Op., Jacks (Oct. 7, 2016): municipalities can adopt drug testing policies consistent with Section 71-7
- MS AG Op., Danks (Nov. 17, 2017); MS AG Op., Nowak (May 29, 2012); MS AG Op., Myers (Oct. 11, 1996): Section 71-7-7's limits to specific employee categories
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