After Florida voters approved a constitutional amendment in 2016 and the legislature enacted statutes implementing the voters’ will nearly a year later, hundreds of thousands of Floridians have become lawful medical marijuana users. Because medical marijuana use is still considered illegal under federal law, employers have been off the hook in providing accommodations to legal medical marijuana users in the workplace. But things may be changing for employers in the Sunshine State.  The state legislature is taking its cue from other states which have expanded medical marijuana users’ rights to include additional protections.

What is Included?

Currently under consideration by the Florida Legislature are House Bill 595 and Senate Bill 962, both entitled Medical Marijuana Employee Protection Act (“Act”).  If passed, they will afford sweeping rights to Florida employees using medical marijuana in both the public and private sectors.  The proposed law would afford new employment rights for both applicants and employees, including the right to sue employers if an adverse personnel action is taken against an employee because of his or her status as a qualified medical marijuana patient. The only exception relates to jobs involving “safety-sensitive” duties including teachers, school bus drivers, police and firefighters. 

Both bills define “safety-sensitive” as tasks or duties of a job in which 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 is the Impact?

If the Act passes, then medical marijuana use could become a newly protected class for all applicants and employees in Florida. Employers will be required to justify a failure to hire or an adverse personnel action against an employee who is a medical marijuana user.  The new Act will require employers to demonstrate, and rather extensively, that the employee’s ability to perform his or her job duties is being impaired by the lawful use of medical marijuana.  This will be a laborious undertaking. If the employer fails to prove impairment, the employee can obtain injunctive relief (such as job reinstatement), money damages and an award of costly attorney fees. 

Florida is an extremely litigious state when it comes to employment-related actions under both state and federal law. Understanding the complexity of protected classes in the workplace is arduous enough now, so adding the Medical Marijuana Employee Protection Act into the mix will make it all the more challenging for employers.

Key areas employers will need to consider are job descriptions and drug testing policies. Most employers do not have detailed job descriptions, which can be an issue when defending against these types of cases and drug testing is always a legal minefield. Proactive review and audit of policies and job descriptions will ensure the employer will be ready for this new law. This will also help comply with existing laws for drug testing.

What Can Employers Do?

Take inventory of job descriptions

Employers can start taking inventory of all job descriptions within their companies, and ensure that the descriptions accurately reflect the job duties performed.  The term “safety sensitive” is key. Most employers do not have detailed job descriptions. There needs to be a HR and  legal review to determine which job positions in each company/agency could qualify thus can be exempt from these sweeping new rights. Those positions that do qualify should be identified using language from the statute and should be made clear that a positive drug test could result in discipline up to and including termination or failure to hire.

Seek training on documenting employee misconduct

The bills do not limit an employer’s ability to take appropriate adverse personnel action against an employee whose medical marijuana use impairs the employee’s performance, but it will be critical to articulate how the impairment impacted the employee’s performance.  For this reason, employers will need to be on high alert for employees who may seem impaired and be diligent about documenting where performance falls below acceptable standards.  Proper and detailed documentation will be critical in order to establish that the reason for the adverse personnel action is justified.

Review policies on when and how employers can drug test.

If employers drug test applicants, make sure this complies with the evolving laws that depend upon the state in which you live. In Florida, only certain public officials in a “safety sensitive” position can be tested as an applicant.

Also the differences between random drug testing and reasonable suspicion drug testing has to be understood for public agencies. There are many legal pitfalls if an employer gets this wrong.

Personnel policies have to be clear as to what happens when there is a positive drug test. HR has to treat all employees the same for similar results.

Stay Informed.

It is not clear if House Bill 595 and Senate Bill 962 will become law in 2020, but it is prudent for employers to review the bills and keep track of their journey through the legislature.

If national trends are any indication, Florida employees who are qualified medical marijuana users will have many new workplace protections leaving Florida employers to face new obstacles in an already complex legal landscape.

This article was originally published in Law360 on February 5, 2020 and is republished with permission.