Amendment 2 passed with more than 70% of Florida voters agreeing that the state should permit use of marijuana for a limited group of medical conditions. At least anecdotal evidence supports the conclusion that marijuana may help people with these conditions or conditions closely related to the listed ailments.
Medical marijuana’s use in the workplace is likely to cause litigation in Florida, just as it has in other states that have either legalized marijuana or made it available for medical purposes. Florida is a “right to work” state meaning that an employer can take adverse employment action freely provided that the negative employment action is not motivated by an illegal or unlawful purpose. For example, an employer may not terminate an employee for belonging to a protected class based on race, religious preference, national origin and similar reasons. An employer may take adverse employment action due to an employee being late to work or missing assignments even if the employee is usually on time with both.
Medical marijuana will pose some difficult challenges. It is unlikely that the state of Florida would punish an employer who terminates an employee who is inebriated-regardless of the cause of the inebriation. However, in most instances an employer could prove that an employee was actually impacted by a substance. For example, a breath test shows alcohol content in real time as does a blood test for certain medications like some of the opioids.
The challenge with marijuana is that it may register in the blood stream of an employee for weeks after use. What happens to the employee who tests positive for marijuana in the blood stream but who in actuality has not used marijuana for months? What accommodations will the employer have to make for an employee who is “prescribed” marijuana and who legally used it the night before coming to work?
It is likely that Florida employees will continue to bear the burden of proving that they are not impaired at work despite having medical marijuana available to them (or having recently used). Common sense would suggest that as long as the job is not impacted by an employee’s use of medical marijuana off job premises, that employee is not interfering with the rights of the employer.
The employer may defend any action taken, claiming it is following Federal law which still has marijuana listed as a Schedule I drug, whereas the more harmful opioids and cocaine are classified as Schedule II drugs, a classification reserved for less dangerous drugs. The answer lies in the Federal government advancing its views on medical marijuana beyond 1969 when marijuana was first listed as a “Schedule 1” drug. Since 2013, Congress has offered legislation to regulate marijuana as alcohol is regulated, removing the prohibition but it has never received enough votes to become law.. Shifting sentiments around the substance make it likely federal prohibition will be lifted. But until then, this is a thorny subject and one employers’ and patient-employees need to approach with caution.
Are you facing a legal quandary over medical marijuana in Florida? Call us to weigh your options.