With the passing of the 2016 constitutional amendment and the Legislature’s enacting of statutes implementing the voters’ will, hundreds of thousands of Floridians have become lawful medical marijuana users.^[1]  By and large, Florida employers were not impacted by the legalization of medical marijuana because both the use and possession of marijuana are still illegal under federal law.^[2]  Under Florida’s Constitution, employers are not required to accommodate medical marijuana use in the workplace.  However, other states have expended medical marijuana users’ rights to include additional protections.

The Florida Legislature is currently considering similar protections.  House Bill 595 and Senate Bill 962 will, if passed, afford sweeping rights to Florida employees using medical marijuana.  The bills, both entitled Medical Marijuana Employee Protection Act, impact both public and private sector employers.  In short, this proposed law would afford new employment rights for applicants and employees, including the right to sue employers if an adverse personnel action is taken against a lawful medical marijuana user because of his or her status as a qualified medical marijuana patient. The only caveat relates to jobs involving safety-sensitive duties, such as teachers, school bus drivers and firefighters. 

Challenges for Employers

To justify a failure to hire or an adverse personnel action against a medical marijuana employee, the employer will now be required to establish, by a preponderance of the evidence, that the lawful use of medical marijuana is impairing the employee’s ability to perform his or her job duties.  This will undoubtedly be a tricky, fact-intensive and expensive undertaking for Florida employers.  If the employer fails to prove impairment, the employee can obtain injunctive relief (such as job reinstatement), money damages and an award of attorney fees.  In essence, medical marijuana use could soon become a newly protected class for all applicants and employees in Florida.

Definition of Exempt Jobs

Under these bills, an employer may not take any adverse action against any employee or job applicant who is a qualified medical marijuana patient unless the position at issue involves safety-sensitive job duties. The bills define “safety-sensitive” as “tasks or duties of a job that the employer reasonably believes could affect the safety and health of the employee performing the tasks or duties or other persons, including, but not limited to, any of the following:

• The handling, packaging, processing, storage, disposal, or transport of hazardous materials.
• The operation of a motor vehicle, equipment, machinery, or power tools.
• The repair, maintenance, or monitoring of any equipment, machinery, or manufacturing process, the malfunction or disruption of which could result in injury or property damage.
• The performance of firefighting duties.
• The operation, maintenance, or oversight of critical services and infrastructure, including, but not limited to, electric, gas, and water utilities or power generation or distribution.
• The extraction, compression, processing, manufacturing, handling, packaging, storage, disposal, treatment, or transport of potentially volatile, flammable, combustible materials, elements, chemicals, or any other highly regulated component.
• The dispensing of pharmaceuticals.
• The carrying of a firearm.
• The direct care of a patient or child.

What Employers Can Do

Employers should examine the written job descriptions of all positions to confirm they accurately reflect the job duties actually performed, and determine which positions might include safety-sensitive tasks or duties which could exempt that position from compliance with these new bills.  If the position entails such safety-sensitive duties, those should be identified by language from the statute and should state that a positive drug test could result in discipline up to and including termination or failure to hire.

According to the bill, employers would be permitted to take “appropriate adverse personnel action” against any employee whose medical marijuana use impairs the employee’s ability to perform his or her job responsibilities.  Employers will have to be on alert for impaired employees, document where performance falls below acceptable standards, and be able to articulate how the impairment impacted the employee’s performance.  Training on how to document employee misconduct will be needed so employers can establish that an employee was facing an adverse personnel action for reasons other than medical marijuana use. 

Both public and private Florida employers are sued far too often by sober applicants and employees under a wide variety of federal and state laws.  Just when the HR Department begins to understand the complexity of who in their workplace is in a protected class and who is “at will,” along comes potential legislation that would afford great protections to qualified medical marijuana users. 

As with any new bill, the devil is in the details.  Employers should review the bills and follow their paths through the Legislature.^[3]  Although it is possible the bill will not become law this year, national trends indicated that employees who are qualified medical marijuana users will have many new workplace protections in the near future.  Employers need to stay tuned as the Legislature grapples with this expensive and expansive potential new law.

This piece was originally shared on Cannabis Business Executive on January 30, 2020 and is republished here with permission from the publication.

[1] Section 381.986, Florida Statutes

[2] Marijuana is classified as a Schedule I drug by the Controlled Substances Act. 

[3] https://www.flsenate.gov/Session/Bill/2020/595 and https://www.flsenate.gov/Session/Bill/2020/962