United States: What Does Florida's New Medical Marijuana Law Mean For Employers?

Executive Summary: As employers in Florida prepare for the new year, many may wonder how Florida's new medical marijuana law will impact them. In the November 2016 election, Florida as well as Arkansas, North Dakota and Montana all approved their respective medical marijuana amendments, bringing the total to 28 states and the District of Columbia that now allow comprehensive public medical marijuana programs. Additionally, Maine, Massachusetts, Nevada, and California voted to legalize recreational marijuana, meaning a total of eight states and the District of Columbia now permit the recreational use of marijuana. While the text of Florida's medical marijuana law provides little guidance for employers, an examination of how other states have handled employment issues under similar laws provides some insight into what Florida employers can expect.

Florida's History of Medical Marijuana

In 2014, Florida Governor Rick Scott signed into law SB 1030, also known as the "Charlotte's Web" bill, which legalized a low-THC strain of marijuana for terminally ill patients and patients suffering from chronic seizures and/or severe muscle spasms. Many medical marijuana advocates viewed this law as inadequate because of the small percentage of individuals covered and the low potency of the marijuana permitted. In 2014, a more comprehensive medical marijuana program (Amendment 2) was brought to the ballot, but did not receive the necessary 60 percent of votes to be enacted. In 2016, Amendment 2 was proposed again with more clarity regarding important measures that were previously criticized, such as what constitutes a "debilitating medical condition." On election night, Amendment 2 easily passed, receiving over 70 percent of the votes in its favor.

Now What?

Now that medical marijuana is legal in Florida, employers are inevitably going to run into some issues relating to the new law. The language of the Amendment provides little insight into its potential effect on employers. It does state, however, that the law does not require any accommodation of on-site medical use of marijuana in any place of employment. Most states' medical marijuana statutes contain similar carve-out exemptions for employers. On the other hand, some state laws explicitly prohibit discrimination against individuals on the basis of having a medical marijuana registration card. Florida's statute does not contain any such prohibition. Therefore, Florida employers can prohibit employees from smoking or consuming medical marijuana at the workplace. However, for more guidance and direction, employers will have to wait for the Department of Health to promulgate regulations necessary for the implementation and enforcement of the new law. Fortunately for Florida employers, other states have already legalized medical marijuana. This allows us to survey how those other states have handled employment issues and get a better sense of what may lie ahead for Florida employers.

ADA and FMLA Concerns

A big concern for employers is what effect the legalization of medical marijuana will have on the duty to provide a reasonable accommodation under the Americans with Disabilities Act (ADA). For example, would an employer be required to permit an employee to use medical marijuana on his break to help alleviate his "debilitating medical condition"? For now, employers seem to be in the clear. Courts that have addressed this issue have unanimously held that employers have no obligation to accommodate medical marijuana use, possession, or impairment while at the workplace. This is because the ADA states that a person currently using illegal drugs is not a "qualified individual with a disability," and therefore is not protected under the ADA. Even though medical marijuana is now legal in Florida, it is still illegal under federal law—and thus still technically illegal under the ADA.

Another concern employers may face is a potential disparate treatment discrimination claim for terminating or refusing to hire an employee because of his or her medical marijuana use. Again, because medical marijuana use is not covered under the ADA, employers should not be subject to an ADA discrimination claim so long as the adverse action is a result of the medical marijuana use and not because of any underlying disability.

An issue that will likely come before courts in the near future is whether employers are required to accommodate an employee's off-duty medical marijuana use. For now, Florida employers are not required to make such an accommodation. However, under the right circumstances, it is possible that a court could require off-duty medical marijuana use as an accommodation. Florida employers be aware of the development of case law on this issue to ensure compliance with the law.

While the use of medical marijuana is not protected under the ADA, the employee's status as a medical marijuana user may reveal the underlying condition for which the employee is being treated. If this condition constitutes a disability, the employer may have an obligation to engage in the interactive process with the employee and discuss reasonable accommodations other than medical marijuana use prior to taking adverse action. Additionally, where the ADA comes into play, so too may the Family Medical Leave Act (FMLA) (for employers covered by the FMLA). Thus, once the employer becomes aware of the employee's underlying medical condition, it may need to consider whether FMLA leave is available and appropriate for the employee.

Drug Testing and Zero Tolerance Policies

In the majority of states, employers who utilize non-discriminatory zero tolerance drug policies can refuse to hire or terminate employees who fail a drug test for marijuana regardless of whether the marijuana was obtained legally. Unlike tests for alcohol, the tests available for marijuana do not always indicate that the employee is currently impaired at the time of testing. Marijuana can stay in an individual's system for weeks. Therefore, an employee's off-duty medical marijuana use could cause him or her to fail the employer's drug test. To prevent this, several states offer some protection to medical marijuana users by requiring employers to prove evidence of impairment in addition to the positive drug test. Proving impairment can be a daunting task for employers as there is little guidance regarding what constitutes impairment from marijuana use.

Currently, Florida does not have an "impairment plus" regulation; therefore, employers can continue to maintain and enforce their zero tolerance drug policies. However, if Florida eventually enacts such a regulation, employers will need to provide comprehensive training to their managers regarding how to detect signs of impairment, take witness statements, and perform other measures that accurately document the situation.

Safety Concerns

Employers must keep in mind the safety concerns associated with employees engaged in the medical use of marijuana. The Occupational Safety and Health Administration Act requires employers to maintain a place of employment "free from recognized hazards." Further, the Department of Transportation and other federal agencies explicitly prohibit marijuana use for safety-sensitive employees. The Drug-Free Workplace Act also applies to some federal contractors and requires good faith efforts to maintain a drug free workplace. Employers who employ individuals in safety-sensitive positions should consider these safety laws, the risks of a workplace accident, and other safety concerns before deciding how they are going to handle employee use of medical marijuana.

Employers' Bottom Line

For now, not much changes for Florida employers as a result of the legalization of medical marijuana. Employers do not need to allow any sort of medical marijuana use as a reasonable accommodation to their employees. Nevertheless, employers should still be wary when an issue with medical marijuana arises because once they become aware of an employee's underlying medical condition, they may be obligated to engage in the interactive process and provide some other type of reasonable accommodation or leave. Employers who choose to continue to maintain zero tolerance drug policies should communicate to their employees that any marijuana use—including off-duty, legal use—can subject them to adverse action including termination. Employers should also be prepared to revisit and revise these policies once the regulations are published, which will likely provide more guidance to employers. Although Amendment 2 takes effect January 3, 2017, the Department of Health is not required to issue regulations for six month after that. We will continue to keep you informed as more information regarding the enforcement of this new law become available.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.