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New Florida Law Demonstrates Tension Between Medical Marijuana and Employer Drug Policies

    Client Alerts
  • July 13, 2017

Florida Governor Rick Scott recently signed into law a medical marijuana use bill that was prompted by a voter referendum that amended the Florida Constitution to provide certain patients the right to use marijuana for medical purposes. The law limits such rights to patients with debilitating medical conditions but does not specifically define this term. For employers in Florida and beyond, these medical marijuana legalization laws raise questions regarding their ability to enforce policies that prohibit the use of marijuana by employees on or off duty.

The Florida referendum only stated that employers would not be required to accommodate on-site marijuana use by employees. The measure and the new law implementing its terms make no provision for claims by persons who are disciplined or fired based on positive tests for marijuana use absent any sign of use or intoxication in the workplace. In fact, the new Florida law specifically states that employers are not required to accommodate medical marijuana use in any respect, and that it does not create any sort of legal claim for persons terminated from employment as a result of legal medical marijuana use.

As with other states that have legalized use of medical marijuana, this position has led to claims by users that legalization is meaningless if it results in employers’ unfettered ability to discipline employees regardless of their possession of a medical marijuana prescription. The Florida law may lead to legal challenges that its employment terms do not comply with the voter initiative.

Employers with operations in states that have legalized medical or recreation use of marijuana need to decide how to approach this issue. DOT-regulated drivers and employees with safety-sensitive duties should not be allowed to work after testing positive for marijuana use, regardless of a medical prescription. For other workers, employers may choose to accommodate medical use outside of work based on appropriate certification and rules regarding the effects of such use on their work activities.

As more states legalize marijuana use, state legislatures and courts will likely encounter proposals and challenges intended to deal with the implications of legalization on the workplace.