High times at Florida workplaces may or may not become more prevalent with a new law that allows the medical use of stronger marijuana by a greater number of patients.
The legal use of medical marijuana is not completely new there. In 2014, Florida legalized the medical use of low-THC cannabis by patients who are terminally ill with less than a year to live. In November 2016, Floridians went to the ballot box and voted in by a super majority the Medical Marijuana Legalization Initiative, also known as Amendment 2. The passage of that ballot initiative allowed medical marijuana to be given to patients so long as a physician believes the medical benefits of using marijuana outweigh the potential health risks.
Senate Bill 8-A, which Gov. Rick Scott signed into law in late June 2017, now allows the medical use of even stronger strains of marijuana by patients who suffer a broad variety of afflictions. The new law significantly expands the types of “debilitating medical conditions” for which medical marijuana may be used, including glaucoma, post-traumatic stress disorder, Crohn’s disease, Parkinson’s disease, multiple sclerosis, cancer, epilepsy, HIV, AIDS, and ALS. It also allows the medical use of marijuana by patients who suffer from other conditions that are “of the same kind or class as or comparable” to those specific ailments.
But that does not mean that qualified patients can ingest weed in any form they like. Instead, the new law prohibits patients from smoking cannabis; they may only consume marijuana through vaping, oils, sprays or pills. Additionally, the new law contains other restrictions that proponents of medical marijuana say violate the initiative’s original intent.
The new law also does not mean that anyone with an illness and a prescription in the Sunshine State can “party hardy” on the job. By its own terms, the new law “does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana.” Likewise, the new law “does not create a cause of action against an employer for wrongful discharge or discrimination.” By the same token, the new law “does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy.” Patients also have to pay for their own pot, as the new law specifies that “[m]arijuana … is not reimbursable under [the Workers’ Compensation Law].”
Despite these mandates in the new law, Florida employers may feel a bit dazed and confused in terms of their obligations. That is because the new law does not clarify an employer’s potential duty to accommodate an employee’s use of medical marijuana away from the worksite. Florida courts have not yet ruled on this issue, but courts in other jurisdictions with similar laws have had some say. For example, the Washington Supreme Court ruled in 2011 that the “explicit statement against an obligation to accommodate on-site use” in the Evergreen State’s statute did “not require reading into [that statute] an implicit obligation to accommodate off-site medical marijuana use.” Roe v. TeleTech Customer Care Management (Colorado) LLC, 257 P.3d 586, 591 (Wash. 2011).
Making things appear even more hazy, Florida courts generally have construed the Florida Civil Rights Act (which prohibits various forms of employment discrimination) in conformity with the federal Americans with Disabilities Act (“ADA”). But the use of marijuana remains illegal under federal law. As such, courts may not view a medical marijuana user as a “qualified individual with a disability” under the ADA. That is because the ADA expressly does not cover an employee or job applicant “who is currently engaging in the illegal use of drugs.” 42 U.S.C. § 12114a. In that vein, the ADA’s definition of “illegal drugs” is governed by federal law (by reference to the federal Controlled Substances Act) and not Florida law.
Just because the ADA presently does not protect the use of medical marijuana or prevent employers from disciplining employees for using marijuana, that does not mean that adverse employment actions should be treated as casually as “4:20” time. Indeed, an employee’s medical condition that supports the use of medical marijuana under the new law could still trigger protections under the ADA and other Florida laws that bar disability discrimination, as well as the federal Family and Medical Leave Act (“FMLA”). For instance, an employer who learns that an employee has such an underlying medical condition may be obligated to engage in the interactive process and explore possible accommodations with the employee under the ADA. Such an underlying affliction also may constitute a “serious health condition” that would allow the employee to take a medical leave under the FMLA.
Until the courts clarify the obligations of Florida employers under the new law, employers there should be proactive in order to keep their worksites from going up in smoke. To that end, they should review and, if necessary, revise applicable handbooks and employment policies to make sure that they are compliant with both federal and Florida law. Likewise, it would be advisable for employers to determine in advance how positive marijuana tests will be handled. In that regard, when an employee tests positive for marijuana, it might be wise to have appropriate managers designated and trained to communicate with the employee. Of course, it also would be prudent to consult with legal counsel to ensure that workplace policies and contemplated disciplinary actions do not run afoul of this new law.