With the outcome of the November 2016 election, Florida is one of the 28 states, along with the District of Columbia, that allow medical marijuana programs. The District of Columbia and eight other states allow recreational use of marijuana, with Nevada, Maine, California and Massachusetts being added in November 2016. Florida’s medical marijuana law offers scarce direction for employers, so consideration of how other states with similar laws handle these employment issues will over guidance in what employers in Florida can expect.
Medical marijuana has been hotly contested in Florida. Governor Scott signed into law SB 1030 in 2014 for terminally ill patients and patients suffering from chronic seizures and/or severe muscle spasms. Amendment 2, the medical marijuana program, which was more in depth than SB 1030 was on the November 2014 ballot, but fell a few points short of the 60 percent needed to become law. Wanting to get back on the ballot, Amendment 2 was back on the November 2016 ballot, but it had been revamped, changing the highly-criticized portions that was originally blamed for its failure in 2014. Amendment 2 overwhelmingly passed with over 70 percent approval.
While offering little guidance for employers, Florida’s employers may prohibit employees from using medical marijuana in the workplace. The Department of Health has yet to address regulations needed for implementation and then enforcement of medical marijuana and the workplace. There are huge concerns for employers about opening Pandora’s Box, such as how will this effect reasonable accommodations under the Americans with Disabilities Act (“ADA”). Will employers have to accommodate medical marijuana use and possession on the job? Medical marijuana may be legal in Florida, but under federal law, it is still illegal and the ADA is a federal program. There are several significant issues that an employer should consider:
1. Insurance. How will the use of marijuana at work affect my insurance, to include PL, GL, umbrella, Workers Comp, and related riders for vehicles, and/or heavy equipment? How will the use of marijuana affect Health Savings Accounts, Life Insurance, and other benefit programs ?
2. Performance, Adverse Actions, and Accommodations. Can adverse actions be taken on an employee who acts inappropriately or experiences performance issues while using prescription? To what extent must an employer provide spaces near their facility for medicinal or other use?
3. Agreements. What contracts with vendors and/or clients will be materially affected in such a way as to the representations and warranties provided? What changes must be placed in Employment Agreements for those individuals who use marijuana?
With medical marijuana not being covered under the ADA, many questions will arise concerning a disparate treatment claim for refusing to hire an employee or terminating an employee due to their medical marijuana use. Though not expressly covered, there may be medical conditions that do fall under ADA. To keep their worker’s compensation rates low, many employers randomly drug test their employees. Some of those employers have a “Zero Tolerance Policy” for drug use. While some drugs pass thorough your system rather quickly, marijuana can stay in your system for over a month. These issues will be decided before the courts, with new case law on a regular basis. Florida currently lacks a “impairment plus” regulation, which allows employers to them to enforce their Zero Tolerance Drug Policy. Should Florida promulgate such regulations, extensive training, like what is given to police officers, will be needed to employers and managers in how to properly and accurately detect impairment, and take all measures document the incident.
There are safety issues with the use of medical marijuana. Currently, the Occupational Safety and Health Administration Act requires that employers maintain the place of employment “free from recognized hazards.” The Department of Transportation (DOT) and other federal agencies prohibit marijuana use. Federal contractors are required to maintain a drug free workplace pursuant to the Drug-Free Workplace Act. Employers should begin to assess their Zero Tolerance policy, making sure that their posture is reflective of those lice Department of Health issues new regulations about medical marijuana.
North Florida Lawyers, PLLC works with Employers to improve their operations and manage regulations. We handle a variety of practices areas catering to communities in North and Central Florida, as well as southern Georgia.