fLoridaconstitution: nooff-dutyMedicaLMarijuanaaccoMModationrequireMent labor & Employment law Section
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marijuana if there is no evidence of on-duty use, possession, or working“ under the influence.” 3 The County appealed. On appeal, the Second DCA rejected the trial court’ s reading of the governing contractual, constitutional, and statutory texts and characterized the trial court’ s ruling as improper policymaking from the bench. 4 The Second DCA reversed the final summary judgment in its entirety and remanded with instructions to enter final summary judgment for the County on all counts. 5
The primary questions on appeal included whether the CBA prohibited Giambrone’ s medical marijuana use and whether Florida’ s constitutional and statutory medical marijuana provisions require employers to accommodate off-duty medical use. 6
The trial court held that the CBA’ s carveout permitting use of“ prescription or non-prescription drugs” applied to medical marijuana. 7 The Second DCA disagreed. 8 First, the appellate court found that medical marijuana was not a“ prescription” drug under the CBA’ s incorporated statutory definition of“ prescription,” which contemplated drugs dispensed by pharmacists, not substances dispensed by specially licensed treatment centers operating outside that pharmacist-centered system. 9 Second, the appellate court found that medical marijuana was not a permitted“ non-prescription drug,” which the CBA defined as one authorized for“ general distribution and use without a prescription,” because medical marijuana is limited to“ medical use by a qualified patient.” 10 Further, the appellate court found the trial court’ s ruling— permitting off-duty use— improperly narrowed the CBA’ s prohibition against using drugs“ at any time while employed” by the County. 11
Critically, the Second DCA rejected the trial court’ s holding that Florida’ s constitution and medical marijuana statute require employers to accommodate off-duty medical marijuana use. 12 The trial court reasoned that because the Florida Constitution( article X, section 29( c)( 6)) and the implementing statute, Fla. Stat. § 381.986, only disclaim any requirement to accommodate medical marijuana use in the workplace, employers therefore have a duty to accommodate off-duty medical marijuana use. 13 The Second DCA found this reasoning“ precisely backwards,” holding that the fact the Florida Constitution and legislature expressly disclaim any duty to accommodate medical marijuana in the workplace does not create an affirmative duty for employers to accommodate off-duty use. 14 The appellate court further noted that § 381.986 preserves employers’ authority to establish, continue, and enforce drug-free workplace policies, and does not create a cause of action for wrongful termination or discrimination.
The Second DCA states that its holding“ is not a referendum on medical marijuana,” but rather an admonition that courts must apply well-established principles
of judicial construction and interpretation. Here, the contractual, constitutional, and statutory language before the trial court supported that the County had prohibited all marijuana use for this safety-sensitive workforce and was under no duty to accommodate Mr. Giambrone’ s off-duty medical marijuana use. n
1
Hillsborough County v. Giambrone, Case No. 2D2025-0115, 2026 WL 2178829, * 1( Fla. 2d DCA, July 29, 2026). Note: the Appellee’ s Motion for Rehearing En Banc and Motion for Certification of Question of Great Public Importance remains pending before the district court as of the submission of this article.
2
Id.
3
Id. at * 1-2.
4
Id. at * 3-13.
5
Id. at * 13.
6
Id. at * 3-9.
7
Id. at * 5-6.
8
Id. at * 4-6.
9
Id. at * 3-5.
10
Id. at * 5-6( quoting Baxter v. State, 389 So. 3d 803, 809-10( Fla. 5th DCA 2024)). 11
Id. at * 6-7.
12
Id. at * 7-10.
13
Id. at * 7-8.
14
Id.
Authors: Mairi Cooley & Benjamin S. Briggs – Adams & Reese LLP
jointheLaBor & eMpLoyMentLawsectioninyourMeMBerportaLatwww. hiLLsBar. coM.
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