According to research conducted by the state of Florida, more than a quarter of a million people in Florida are medical marijuana users. As this number continues to rise, employers will need to assess how they wish to maintain their drug-free workplace.
The legalization of cannabis in Florida is its infancy. The various Florida laws and regulations regarding cannabis are developing with the passage of time. Florida’s legalized medical cannabis has only been around since 2014. In 2016, the reach of Florida’s medical cannabis greatly increased with the voters’ approval of Florida Medical Marijuana Legalization Initiative (amendment 2). The amendment permits individuals to use cannabis for medicinal purposes. From then on, Florida’s cannabis industry has been budding.
But as the reach of legalized cannabis in Florida continues to grow, many wonder about some of the broader impacts it will have on the state. Employment is one area which will see an impact from the growth of medical marijuana. In particular, how will employers handle the emergence of employees with a medical marijuana use registry identification card.
Florida employers possess the ability to maintain a drug-free work environment although the extent is dependent upon the policies and procedures of the specific employer. As many employers know, there are several financial incentives to implemental a drug-free work environment. One significant consideration for employers is the cost of insurance and reduced premiums associated with maintaining a drug-free workplace. As you can imagine, with this comes various drug testing to ensure employees are complicit with a drug-free program.
Florida’s medical marijuana is governed by Florida Statute 381.986. For those wondering what exactly distinguishes it from recreational (non-medical) marijuana, medical marijuana is dispensed from a medical marijuana treatment center for medical use by a qualified patient. Importantly, Florida’s medical marijuana law does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy. This means that an employer is not required by law to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana.
Thus, employers in Florida can still enforce a drug-free workplace—even with the legalization of medical marijuana. So far, there have been few cases examining Florida’s new law in the context of the workplace. Recently, a former city of Miami employee sued the city, alleging discrimination under the Florida Civil Rights Act arising from his termination for use of medical marijuana after failing a drug test. Ultimately, the litigation went nowhere and the case was disposed of for lack of prosecution.
Nevertheless, employers must be diligent when handling issues regarding medical marijuana and cognizant of what their respective policies and procedures do permit. Also, employers that choose to permit employee medical marijuana use in an otherwise drug-free workplace, must be able to distinguish permitted medical use from other recreational use. Employers willing to work with employees who use medical marijuana must also identify the potential risks and liabilities that may arise should an incident occur as the result of an employee found to be under the influence of medical marijuana.
Lastly, employers should remain mindful of developments with Florida cannabis law moving forward. For example, House Bill 595, titled “Medical Marijuana Employee Protection,” seeks to expand upon the protections afforded to employees who are licensed to use medical marijuana, and to prohibit employers from taking adverse employment actions, such as termination or demotion, against those employers. But for now, Florida law permits employers to enforce a drug-free workplace program.
Andrew M. Gordon is a partner and Nicolas R. Bixler and M. Megan Coughlin are associates in the Fort Lauderdale office of Hinshaw & Culbertson.