News and Notes

On March 18th, 2019, Governor Ron Desantis signed a bill that legalizes smokeable medical marijuana in Florida. The law goes into effect immediately, but the state Department of Health still has to release guidelines for doctors and approve licensed dispensaries to sell their new smokable marijuana products.

Employers should educate themselves on medical marijuana and the workplace. We received the below question from an employer and along with an answer provided by an HR Consultant.

“What is the ruling on an employee using marijuana medical purposes in the office (employee does not operate equipment or work on the roof; ee works in the office)? 

While Amendment 2 provided guidance as to who is eligible to receive medical marijuana, it provided next to no direction for employers on how to handle employees who are legally using medical marijuana in Florida.  However, on June 23, 2017, Florida Statute 381.986 was signed into law providing some clarity to employers with respect to an employee’s use of medical marijuana. Specifically, Florida law does not:

• Permit individuals to use medical marijuana at their place of employment, unless permitted by the employer.
• Limit the ability of an employer to enforce a drug-free workplace program or policy.
• Require employers to accommodate the medical use of marijuana in the workplace.
• Require employers to accommodate any employee working while under the influence of marijuana.
• Permit employees to sue an employer for wrongful discharge or discrimination related to the employee’s medical marijuana use.

Under current statutory and case law, an employee that does not pass the drug test, even if they have a medical marijuana card for medical marijuana use, does not have a case for discrimination against the employer because the Statute that governs the Florida Drug Free workplace still prohibits use of any drugs scheduled as Class One by the Federal government.. Of course this will be eventually be played out in courts and the possibility remains that the courts could at some time rule in favor of employees – especially as the opioid epidemic worsens and more and more states are looking to medical marijuana as a better alternative to chronic pain relief. Until that time, the statute is clear that marijuana use, medical or otherwise, is not permitted under the Florida Drug Free Workplace rules. I advise you to speak to your workers comp company regarding medical marijuana and medical benefits for on “on the job” injury if someone tests positive. Then I would speak to your legal counsel.  If after speaking to both and your decision is to allow for medical marijuana, you will have to revise your policy to reflect this change.”