The Delta-8 Dilemma: What Mississippi Employers (And Maybe Those In Other States) Need To Know About Drug Testing Policies And THC Products

Walk into many convenience stores across the country, and you'll likely see gummies, vapes, and tinctures labeled “Delta-8.” These THC-infused products are quickly becoming more and more accessible, and this accessibility is bringing increased attention to workplace drug policies.

In Dupree v. Mississippi Department of Employment Security, the Mississippi Court of Appeals recently concluded that an employee's use of Delta-8 outside of work did not violate company policy because there was no evidence she was impaired at work. The decision provides some helpful reminders for employers when drafting their drug and drug-testing policies.

What Exactly Is Delta-8?

Delta-8 means Delta-8 THC, where THC is the primary psychoactive ingredient in marijuana. The most common form of THC in cannabis plants is Delta-9 THC. The Agriculture Improvement Act of 2018 (known as the 2018 Farm Bill) legalized hemp and derivatives with no more than 0.3% of Delta-9 THC. Delta-8 is such a legally approved derivative.

The Facts

Mandy Dupree, a City of Bay Springs employee, purchased Delta-8 gummies over the counter. Although she did not have a medical marijuana card, she said her doctor recommended she take THC for pain management.

An administrative city employee who was considered a “covered pipeline employee” subject to U.S. Department of Transportation drug testing regulations, Dupree was required to take a drug test after taking a call relating to a problem with the city's gas line. After completing a routine test, she tested positive for THC. The city terminated her employment due to the positive drug test, and Dupree then applied for unemployment benefits through the Mississippi Department of Employment Security. The agency denied benefits, concluding her termination resulted from misconduct related to her work. Dupree appealed.

Under Mississippi law, employees discharged for “misconduct connected with their work” such as a violation of their employer's policy are disqualified from receiving unemployment benefits. Under the city's drug policy, “the use, possession, or sale of intoxicating beverages, marijuana, or hallucinogenic drugs while on duty or at work under the influence may result in immediate discharge.” In addition, the drug policy prohibited use of illicit drugs, abuse of legal drugs, “arrival to work under the influence of drugs,” or “consuming illicit drugs or alcohol while working.” Even so, the city did not have any evidence, such as a signed acknowledgment form, showing that Dupree had received the policy handbook.

The Holding: Dupree Gets Benefits

THC can remain in a person's system long after use, and the appellate court appeared to implicitly recognize this in its ruling. Despite Dupree's admission that she had taken Delta-8 gummies and smoked marijuana in the past, the court did not find that the positive drug test equaled misconduct. The court distinguished this case from Mississippi Department of Employment Security v. Clark, 13 So. 3d 866, 871 (Miss. Ct. App. 2009), where benefits were properly denied when “the employee admitted to drinking three beers before work and showing up to work smelling like alcohol.” The court pointed out that, unlike in Clark, there was no evidence that Dupree “ever showed up to work smelling of marijuana, nor were there any reports indicating she was high on the job.” Further, there was no evidence that Dupree had received the policy even if she had violated it.

Takeaways for Employers

1. Carefully review workplace drug policies and drug-testing procedures. Ensure that the policy says what you really mean. Be clear when crafting rules around drug use and grounds for termination. For example, if you want to terminate employees who fail a drug test (or test positive for hemp-derived intoxicating products, including Delta-8), the policy should make that obvious.
2. Many products sold widely in convenience stores contain some amount of THC. Therefore, clear drug policies are critical. Define exactly what your policy intends to prohibit.  Simply referencing “illegal drugs” or “illicit drugs” in a workplace drug policy might not cover policy violations well. Employees may not understand that, even if they are not violating the law, they could be violating workplace policy. Define which drugs (or class of drugs), even if legal, are not permitted on a drug test.
3. Make expectations clear when an employee is authorized for medical use. Like many other states, Mississippi legalized medical cannabis use through the Mississippi Medical Cannabis Act. The act provides certain protections for qualified patients, but it does not eliminate employer drug-free workplace policies or prohibit an employer from “disciplining an employee for ingesting medical cannabis in the workplace or for working while under the influence of medical cannabis.” If an employee is a qualified patient, ensure this is disclosed and documented and that rules and expectations are clear.
4. Document, document, document. For termination decisions related to THC use, helpful documentation includes the written policy, drug-test results, proof that the employee received the policy, and records of disciplinary action. If other employees saw an employee acting “high” or buying gummies, put that in the file. It is never a bad idea to have all employees sign an acknowledgment that they received and understood the drug policy.

As always, reach out to your favorite team of employment lawyers if you need help drafting a policy, checking the policy you currently have in place, or just have questions about drug testing in the age of THC-infused products.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.