Medical Marijuana in Florida – How does this affect Employees?

Medical Marijuana in Florida – How does this affect Employees?

January 3rd, 2017 is the date in which Florida became the 26th state to legalize marijuana for medicinal use. Although it will likely be months before the first wave of patients has access to the drug, it has many employers and potential patients searching for answers on its effects on employment.

Federal Employees and Contractors

If you are a federal employee or federal contractor, the answer is simple. Under federal regulations, the drug is still illegal and any employee or contractor of the federal government is prohibited from utilizing the drug, even if they reside or are employed in a state where medical or recreational use is legal.

Florida State Employees and Contractors

The State of Florida has not yet released any proposed plan or policy regarding medicinal use of marijuana by their employees and contractors.

Private Employees and Independent Contractors

It is unclear how much legal protection employees will have under the new Florida law. The language of the statute seems intentionally vague regarding patient protections and/or discrimination in the workplace regarding on-going use of medicinal marijuana. Marijuana is still deemed illegal under the federal Controlled Substances Act. The new Florida law does mention that employers do not have to make accommodations for “on-site use of medical marijuana”, meaning that even if employers give exemption to legal users of the drug, they do not have to allow smoking, ingesting, or “vaping” of the drug on their premises.

Other States’ Approach

Since no Floridian has had any legal standing to challenge an employee’s right to treat their disability or illness with medicinal marijuana, the Florida Supreme Court has yet to rule on this matter. However, several other state courts, including Oregon, Colorado and New Mexico, have ruled that employers are not required to provide accommodations for a substance, being used medicinally or otherwise, that remains illegal under federal law.

Massey & Duffy, PLLC is a civil law firm dedicated to protecting the rights and interested of employees in the Gainesville, Ocala and Lake City communities. Attorneys of Massey & Duffy have represented hundreds of clients in employment related cases such as FLSA, FLMA, Unpaid Overtime, Unpaid Wages, Employment Discrimination and the Fair Credit and Reporting Act. For a Free Consultation regarding your unique employment situation, please call our office at (352) 505-8900 or submit a contact request here.

Medical Marijuana: Legal or Not, You Could Lose Your Job

In June 2014, Governor Rick Scott signed the “Florida Compassionate Medical Cannabis Act of 2014”, which gave the authority to qualified physicians in Florida to prescribe a low-THC strain of marijuana to patients with chronic seizures.  While this law has yet to see its first prescription filled, in November 2015, the Florida Legislature identified the five dispensaries which would begin growing, harvesting and dispensing the drug.  In November 2014, a much broader Florida Constitutional Amendment narrowly missed its mark of 60% ballot approval.  This same initiative is expected to be on the 2016 ballot and most analysts believe it will easily pass.

So what does this mean for Floridians if a broader measure is enacted?  Well, as seen across the US, patients with chronic pain, terminal illness and a variety of other conditions will have access to prescriptions for medical-grade marijuana.  Many of these patients are unable to work or severely disabled, and some are not.  Some patients will be truck drivers, construction workers, bankers and even surgeons.  Some of these patients who are in the workforce, will still be subject to periodic drug screenings and zero tolerance drug policies.

As of now, the US Drug Enforcement Administration (DEA) still lists marijuana as a Schedule I controlled substance.  The DEA definition of a Schedule I drug is “substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. Schedule I drugs are the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.”  Marijuana, LSD, Heroin and Ecstasy are all Schedule I drugs.  Cocaine, Oxycodone and Methamphetamines are considered to have slightly less potential for abuse and dependence and are on the Schedule II list.  The DEA scheduling of marijuana has been under criticism for many years, however, no change to its status has been made or even openly discussed by the current or past administrations.

So, as a federal employee, prescription or not, you will not be able to use marijuana for any purpose and remain employed by the federal government.  This has some ripple effect to federal contractors and companies who rely on federal funding such as state and private universities.  While there is no current case law to determine whether it is legal for a private company in Florida to fire an employee who uses prescribed marijuana, it is an issue many states, such as Colorado, Michigan, and California have already been grappling with.

Employers will likely be the first target if/when medical marijuana becomes legal to a broader group of patients in Florida.  Many occupations will have to weigh the safety risks with possible discrimination lawsuits until state courts and federal law catches up.  If you are considering using marijuana for medical purposes, be sure to check with your employer first to see what policies they have in place.  The cannabis discussion is far from over, both in Florida and across the country.  It will be interesting to see how it is impacted in 2016.