isiTunconsTiTuTionalnoTToaccommodaTemedicalmariJuanause ? labor & Employment law Section Chairs : AmandaBiondolino – SassLawFirm & LaKishaKinsey-Sallis – Fisher & PhillipsLLP
Anti-discrimination laws require employers to reasonably accommodate employee disabilities . But what happens when an employee requests something that is legal under state law , but illegal under Federal law ?
Under the Americans with disabilities Act , for example , qualified employees with disabilities are entitled to reasonable accommodations . However , what is “ reasonable ” is a fact-specific inquiry dependent upon the particular facts of a given situation . The law requires employers and employees to engage in an “ interactive process ” to discuss potential accommodations , explain what will or will not work , and determine what accommodations are “ reasonable .”
Can medical marijuana be a reasonable accommodation ? The First district Court of Appeals is considering this question , but from a different angle : Is an employee ’ s off-site use of medical marijuana to treat their disability protected by the Florida Constitution ? 1
In 2016 , Florida voters passed a Constitutional Amendment legalizing medical marijuana . This Amendment 2 reflects Florida public policy that qualifying patients be protected from civil or criminal liability , or sanctions for medical
marijuana use as permitted by the Amendment . The Amendment provides “[ n ] othing in this section shall require any accommodation of any on-site medical use of marijuana in any . . . place of employment .” neither the Amendment nor the enabling statute 3 requires an employer to accommodate the medical use of marijuana in any workplace or any employee working “ while under the influence .” 4 Section 381.986 ( 15 )( c ) further provides “ this section does not limit an employer ’ s ability to continue to enforce a drug-free workplace program or policy .”
But does the Florida Amendment and enabling statute implicitly recognize employment accommodations for off-site medical marijuana use ? The outcome of an appeal before the First dCA of a Public Employees relation Commission decision upholding the termination of a department of Corrections employee who tested positive for THC on a random drug screen may provide some insight on this question . Although the employee in that case used medical marijuana to treat Post Traumatic Stress disorder , he did not work while under the influence , or use marijuana on-site . The department cited its zero-tolerance policy for marijuana use , and directed him to cease using marijuana to keep his job . The employee instead asked
whathappensif anemployeeis prescribedmarijuana totreattheir disabilityinflorida ?
the department to accommodate his continued off-duty use , which was refused .
Currently , someone legally prescribed opioids who tests positive for opiates in a drug-free workplace , although are not under the influence , may produce the prescription to justify having opiates in their system . does Florida ’ s new Constitutional Amendment give an employee with a valid medical marijuana-use registration card similar protections as those testing positive for legally prescribed opiates in a drug-free workplace ?
Practitioners should stay tuned . The First dCA decision is expected soon , and should provide much needed guidance regarding these questions and others surrounding the increasing prevalence of medical marijuana issues in the workplace . n
1
Samuel E . Velez Ortiz - Appellant , v . department of Corrections – Appellee ; Case no . 1d22-0375 ; In the district Court Of Appeal First district , State Of Florida
2
Florida Constitution Article x , Section 29 .
3
§ 381.986 Fla . Stat . ( 2017 ).
4
Fla . Stat . § 381.986 ( 15 )( b )
Author : Jason Imler – Imler Law
4 4 N O V - D E C 2 0 2 2 | H C B A L A W Y E R