United States: Duty To Accommodate – Medical Marijuana

Last Updated: February 15 2016
Article by Dori K. Stibolt

As I previously posted, medical marijuana has made Florida's 2016 ballot and is likely to pass muster this time around (in 2014 medical marijuana received 58% of the Florida vote, falling just short of the 60% necessary to pass).

So, assuming that Florida employers will soon be faced with questions from medical marijuana using employees lets explore whether Florida employers will have a duty to accommodate such employees. Like with many new laws, litigation over the question will eventually give us a more certain answer.

But, in the meantime, Florida employers can look to case law authority for similar medical marijuana laws in other states. First, lets start with the relevant Florida ballot language which provides:

(6) Nothing in this section shall require any accommodation of any on-site medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place.

This Florida ballot language is similar to language from the medical marijuana statutes of Alaska, California, Maryland, Massachusetts, New Mexico, etc. which simply serve to decriminalize medical use of marijuana.

And, Florida's ballot language does NOT include "duty to accommodate" language that is found in the medical marijuana statutes of Arizona, Delaware, Maine, New York, etc. For example, Arizona's statute provides the following protection for employees:

An employer may not discriminate against a person in hiring, termination or
imposing any term or condition of employment or otherwise penalize a person
based upon either:
-the person's status as a cardholder;
-a registered qualifying patient's positive drug test for marijuana
components or metabolites, unless the patient used, possessed or was
impaired by marijuana on the premises of the place of employment or
during the hours of employment.

Recently, the United States District Court for the District of New Mexico dismissed a lawsuit brought by an employee who was fired after testing positive for marijuana after utilizing medical marijuana as permitted by New Mexico law (which is similar to Florida's ballot language).

In the New Mexico case, Rojerio Garcia, during his job interview, disclosed his serious medical condition, HIV/AIDS, and further disclosed that he treated his medical condition with medical marijuana. Mr. Garcia was hired and underwent a drug test which he subsequently failed. Accordingly, Tractor Supply, the employer, discharged Mr. Garcia on the basis of the failed drug test.

Mr. Garcia filed suit and argued that New Mexico's Compassionate Use Act ("CUA"), which permits the use of marijuana for medical purposes should be considered in combination with New Mexico's Human Rights Act, which prohibits employers from discriminating on the basis of a serious medical condition. As such, Mr. Garcia argued that New Mexico employers must accommodate an employee's use of medical marijuana for a serious medical condition under the New Mexico Human Rights Act.

The Court disagreed. It stated that, unlike a few other states whose medical marijuana laws impose an affirmative obligation on employers to accommodate medical marijuana use, New Mexico's law did not. Consequently, Mr. Garcia did not have a claim under the CUA because the law did not provide a duty to accommodate.

Florida's proposed medical marijuana law language is more akin to New Mexico and other states where there is no affirmative duty to accommodate medical marijuana use. As such, Florida employers should expect that enforcement of a non-discriminatory drug free policy will likely remain permissible but also complicated.

Check back, as I'll be posting more on what Florida employers need to know about medical marijuana in the workplace.

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.

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