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Growing Cannabis Laws: What’s an Employer to Do?

Growing Cannabis Laws: What’s an Employer to Do?
by Sean Sonnenberg

July 18, 2019

By: Jill Davis

As public support for the legalization of cannabis has steadily increased, the majority of states in the U.S. have responded by legalizing the use of cannabis, with 33 states and the District of Columbia permitting the use of cannabis recreationally, medically, or both.  In Florida, medical use of cannabis was legalized in 2016 when voters passed Amendment 2.  Despite the clear shift in state laws, cannabis remains illegal under federal law due its classification as a Schedule I drug under the Controlled Substances Act. As the cannabis industry continues to grow and laws governing the use of cannabis are implemented, interpreted, and challenged, Florida employers will grapple with employment issues related to employees’ use of cannabis, such as:

  • Can an employer still fire an employee who tests positive for marijuana if the employee has a valid medical marijuana prescription?
  • Does the legalization of medical marijuana at the state level affect an employer’s duties under federal laws such as the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA)?
  • Could a terminated employee bring a cause of action in state court for discrimination under the Florida Civil Rights Act?
  • How does the legalization of medical marijuana affect a private employer’s right to test its employees randomly?
  • What about a company that operates in Florida and other states with different laws governing cannabis?

The short answer in Florida, for now, is that an employer can legally terminate an employee who uses or tests positive for marijuana, even if the employee has used marijuana legally.  Because cannabis remains illegal under federal law, employers have no duty to reasonably accommodate an employee’s lawful use of marijuana, as the ADA, which is a federal law, provides that a “qualified individual” does not include any employee or applicant who is currently engaging in the illegal use of drugs.  Similarly, an employee who qualifies for and takes FMLA leave can be terminated based upon a positive drug test after legally using marijuana during his or her leave.

Additionally, Florida’s medical marijuana statute expressly states that it does not create a cause of action against an employer for wrongful discharge or discrimination, and that it does not relieve a person from any requirement under law to submit to a drug test to detect the presence of a controlled substance, meaning private employers remain free to randomly drug test employees.

Florida’s medical marijuana statute expressly does not limit an employer’s ability to establish, continue, or enforce a drug-free workplace program or policy, and expressly provides that employers are not required to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana.

Of course, even though they are not legally required to accommodate an employee’s legal use of medical marijuana in the workplace, employers may wish to consider providing accommodations in the interest of retaining employees.  Employers may choose to maintain a modified drug-free workplace where some traces of THC in a positive drug test would be acceptable, as long as the employee has the appropriate medical certification and refrains from on-duty use and does not otherwise not pose a risk in the workplace.  Or an employer can choose to limit drug testing to pre-employment only, or only when the employer has a reasonable suspicion of impairment or after an accident or on-the-job injury occurs, but eliminate random employee drug testing.

On the other end of the spectrum, an employer may choose to maintain a zero-tolerance policy to eliminate the need to make decisions regarding accommodations, which would entail a full ban on marijuana use regardless of the reason or the fact that no state law was violated.  Although this approach is legal in Florida for now, an employer who operates in multiple states must comply with each state’s emerging laws, even though all marijuana use is still illegal at the federal level.  Some states and local jurisdictions (outside Florida) have enacted anti-discrimination laws that prohibit employers from taking adverse action against an employee who uses marijuana in conformance with the local jurisdiction’s marijuana laws, as long as the employee does not consume cannabis at work and is not impaired while on the job.  Recent court decisions have been favorable to employees in states with such anti-discrimination laws.

Even with Florida’s seemingly employer-friendly medical marijuana law, employers should evaluate situations on a case-by-case basis to ensure that the employer’s decisions and actions with respect to an employee using medical marijuana do not otherwise violate a federal, state, or local employment law.

In light of the emerging laws regarding cannabis and the growth of the cannabis industry as a whole, Florida employers should maintain awareness of judicial and legislative developments as they consider, create, amend, and implement their workplace drug policies.

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