The Florida medical marijuana bill signed by Governor Scott last year allows residents of the state with “debilitating medical conditions” to use medical marijuana. It is available in Florida, however, remains illegal under federal law. “Debilitating medical conditions” as defined by the state include:
- Cancer, Epilepsy, and Glaucoma
- HIV+ or Acquired Immune Deficiency Syndrome (AIDS)
- Post-traumatic Stress Disorder (PTSD)
- Amyotrophic Lateral Sclerosis (ALS) and Crohn’s Disease
- Parkinson’s disease, Multiple Sclerosis, or other debilitating medical conditions of the same kind or class
What Does This Mean for Employees?
A company still has the right to have a drug-free workplace policy, as well as the ability to enforce it. An important item that the bill also explains is that the definition of “medical use” excludes the administration or use of marijuana in a patient’s workplace — except when there have been accommodations by his or her employer to allow it.
Although, the bill specifically states: “This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana.”
This means that with Florida employee drug testing laws if they have a policy in place for random drug testing or testing spurred by a safety violation, you can be fired for not adhering to your company’s policy — whether at the workplace or away from it. In short, Florida employers can prohibit employees from smoking or consuming marijuana, or being under the influence, of marijuana in the workplace. If you test positive, the employer can terminate your employment.
Private vs. Public Employers
The Florida medical marijuana bill does have some differentiation for private and public (government) employers. Discipline against employees in the public sector is more “murky” in a legal sense. The state constitution gives public employees more rights than private workers. Depending on the circumstance, there may be a case for an employment lawsuit under the Family and Medical Leave Act (FMLA) or other laws that deal with discrimination in the workplace.
While the Florida statute does not grant employees the right to sue employers for wrongful discharge or discrimination based on medical marijuana use, there has been at least one case (not in Florida) where the court allowed a prospective employee who tested positive for marijuana in a pre-employment drug test to proceed on her claim of disability discrimination. This single case is a sharp departure from other similar cases where the courts have uniformly concluded that the Americans with Disabilities Act does not protect someone currently using an illegal drug. These issues are being faced in numerous jurisdictions where the state law permits use of medical marijuana and highlight the tension between state and federal law- marijuana remains illegal for all purposes under federal law. However, if the fact of medical marijuana use uncovers the underlying condition (which may qualify as a disability under the ADA or serious health condition under the FMLA) the employer still has duties to engage in an interactive process to discuss accommodations (if appropriate) and further to evaluate whether FMLA leave is available and appropriate.
Employee Best Practices
If you qualify for the state use of medical marijuana, it is important to be clear on your employer’s policies. Since the Florida medical marijuana bill allows them to fire you for violating set policies, in many cases you will not have legal recourse. If accommodations have been put in place for you, and a problem arises afterward, there is potential for an employment lawsuit.
Professional employment law attorneys deal with issues surrounding workplace discrimination every day. They understand the intricacies of the law around medical marijuana and many other issues that can come up in the workplace including wrongful termination.
Our firm believes in helping employees get the same quality representation as employers. That’s why we focus on employee rights for Tampa Bay area residents in Florida. Contact Wenzel, Fenton, Cabassa P.A. with questions surrounding employee rights.