LEgALizEd MARiJuAnA And THE wORKPLACE labor & Employment law Section Chairs : Cynthia Sass - Law Offices of Cynthia Sass & Jason Pill - Phelps Dunbar LLP
Florida ’ s Amendment ii passed last november with more than 71 percent of the vote , legalizing medical marijuana use under Florida law .
© Can Stock Photo / daveh900
Florida ’ s Amendment II passed last November with more than 71 percent of the vote , legalizing medical marijuana use under Florida law for people with cancer , epilepsy , glaucoma , HIV , AIDS , PTSD , ALS , Crohn ’ s disease , Parkinson ’ s disease , MS , or “ other debilitating medical conditions of the same kind as or class or comparable to those enumerated , and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient .” Art . X , § 29 ( b )( 1 ), Fla . Const . The passage of Amendment II created many questions , some of which the Florida Legislature addressed when it passed Senate Bill 8A , which was signed into law on June 23 , 2017 , amending section 381.986 , Florida Statutes .
The new law contains key provisions relating to the use of medical marijuana and employment . For instance , section 381.986 ( 15 ) provides that the law “ does not limit the ability of an employer to establish , continue , or enforce a drug-free workplace program ,” or “ require an employer to accommodate the medical use of marijuana in any workplace or any employee working under the influence of marijuana .” Moreover , section
381.986 ( 15 ) specifically provides that the new law “ does not create a cause of action against an employer for wrongful discharge or discrimination .”
There are no reported cases from Florida regarding an employer ’ s duty to accommodate the use of medical marijuana . There are , however , several reported cases from other jurisdictions with similar medical marijuana use laws holding that such laws do not require employers to accommodate the medical use of marijuana in or outside the workplace . See e . g ., Roe v . TeleTech Customer Care Mgmt ., 257 P . 3d 586 , 591 - 92 ( Wash . 2011 ); Emerald Steel Fabricators , Inc . v . Bureau of Labor & Indus ., 230 P . 3d 518 , 524 ( Or . 2010 ). These cases turned not only on the courts ’ interpretation of the state laws at issue , but also on the fact that marijuana in any form , medical or otherwise , is an illegal drug under the Controlled Substances Act (“ CSA ”), 21 U . S . C . § 801 et . seq .
Relatedly , the Americans with Disabilities Act requires an employer to provide a reasonable accommodation to a “ qualified individual ” with a disability ; however , an employee “ who is currently engaging in the illegal use of drugs ” is not a qualified individual . 42 U . S . C . § 12111 ( 8 ).
The ADA further provides that illegal drugs are to be defined by the CSA , not state law . So , until Congress amends the CSA , employers are free to refuse to allow the use of medical marijuana by their employees without fear of violating the ADA . Legalized medical marijuana use will raise other legal issues for Florida employers . For instance , it is foreseeable that challenges will be brought under Florida ’ s unemployment compensation , worker ’ s compensation , and drug free workplace laws , as well as under other federal laws , such as the Family and Medical Leave Act . A majority of states now allow medical marijuana use , and several states have legalized recreational use of marijuana . The public ’ s perception about marijuana use is changing . Such changing views indicate that prudent labor and employment practitioners should be prepared to litigate medical marijuana employment issues .
Author : Gregory A . Hearing - Thompson , Sizemore , Gonzalez & Hearing , P . A .
4 0 N O V - D E C 2 0 1 7 | H C B A L A W Y E R