United States: What Employers Need To Know About Florida's New Medical Marijuana Law

In addition to selecting a new President, Florida voters approved Amendment 2, which amends the Florida Constitution to legalize medical marijuana for use by individuals with specific debilitating medical conditions, as determined by a Florida licensed physician. With its passage, Amendment 2 requires the Florida Department of Health to regulate marijuana production and distribution centers and issue identification cards for patients and caregivers.

Amendment 2 was written explicitly to allow medical marijuana to be provided as a treatment for patients with certain diseases, including cancer, epilepsy, glaucoma, the human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn's disease, Parkinson's disease, and multiple sclerosis. In addition, Amendment 2 contains a catch-all category that applies to any other debilitating medical conditions of the same kind or class as or comparable to those enumerated in the previous sentence, so long as a licensed physician believes that the medical use of marijuana would likely outweigh the potential health risks for the patient.

Amendment 2, which was approved by approximately 71% of the electorate, will take effect on January 3, 2017. Upon becoming effective, Florida will be one of 26 other states to permit the regulated use of medical marijuana. While the approval of medical marijuana is seen as a welcome development by many in Florida, it also poses uncertainty among Florida employers regarding how to handle the legal use of medical marijuana by employees. To assist employers in navigating medical marijuana in the workplace, here are some key points to consider:

1. Does Amendment 2 provide any specific guidance to employers?

Some, but not much. Amendment 2 provides that the law shall not "require any accommodation of any on-site medical use of marijuana" in any place of employment. Therefore, an employer may prohibit an employee from using medical marijuana at the workplace. Similarly, Amendment 2 specifically prohibits the operation of any vehicle while under the influence of marijuana. Consequently, employers may prohibit any of their employees who drive from using or otherwise being under the influence of medical marijuana while driving on company business. Amendment 2 provides no further specific guidance to employers.

2. Can employers continue to enforce their zero-tolerance drug policies?

Probably. Even though marijuana will soon become legal in Florida for authorized medicinal purposes, the drug remains illegal under applicable federal law, which trumps any conflicting state law. Therefore, many employers may decide, with some degree of confidence, to continue to enforce their zero-tolerance drug policies, including drug testing and any resulting discipline for failed drug tests.

However, employees in other states in which medical marijuana is legal have filed lawsuits against their current or former employers for failing to accommodate their medical conditions. To date, employers in those states have prevailed with respect to the lawsuits. However, litigation with respect to medical marijuana is sure to continue, and Florida courts are expected to chime in on this issue.

3. How should my company handle reasonable accommodation requests under the Americans with Disabilities Act in light of Amendment 2?

Under the Americans with Disabilities Act ("ADA"), a covered employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee, so long as the accommodation would not impose an "undue hardship" on the operation of the employer's business. Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities and, of course, can vary depending upon the needs of the individual applicant or employee.

Under the ADA, when a qualified employee or applicant with a disability (which likely includes most, if not all, of the health conditions set forth in Amendment 2) requests an accommodation, the employee/applicant and the employer must engage in an "interactive process" to discuss and determine what, if any, workplace accommodation should be provided. Employers, however, are not required to provide the specific or preferred accommodation requested by the employee/applicant, but only a reasonable accommodation.

Therefore, if an employee/applicant requests as a reasonable accommodation an exemption from the employer's zero-tolerance drug policy (i.e., a request that the employee would not be subject to discipline for a drug test that reflects marijuana in the employee's system), the employer will have to determine, among other things, (i) whether the employee/applicant has a qualifying disability under the ADA (which would trigger the interactive process); (ii) whether the employee/applicant is lawfully permitted to ingest medical marijuana under Amendment 2; (iii) whether the employee/applicant's requested accommodation would pose an undue hardship for the employer or otherwise pose a direct threat to the health and safety of individuals in the workplace; and (iv) whether an alternative reasonable accommodation exists that would allow the employee/applicant to perform the essential functions of the job.

Employers should note, however, that Amendment 2 does not provide an affirmative duty to provide a reasonable accommodation to an employee or applicant. In addition, courts in other states with laws similar to Amendment 2 have ruled that medical marijuana's status as an illegal drug under federal law means that no employer should be forced to accommodate it. Nevertheless, employers who choose to engage in the interactive process under the ADA with respect to medical marijuana use should consult legal counsel in order to properly navigate that process.

4. Will employers be provided any additional guidance from the government with respect to Amendment 2?

Possibly. Amendment 2 requires the Florida Department of Health to issue "reasonable regulations necessary for the implementation and enforcement" of Amendment 2. We expect those regulations to be issued in the coming months, although it is currently unclear as to whether the regulations will specifically address workplace issues.

Amendment 2 is sure to provide unique workplace challenges. Employers are encouraged to consult with legal counsel as issues arise regarding 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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Rachel D. Gebaide
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