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  • Writer's pictureJoshua Navarro, Esq.

Clearing the Haze: Employment and Marijuana in the Workplace

Updated: Jul 17, 2019

Florida's Medical Marijuana program leaves questions for employers and employees alike.

As more and more patients are added to Florida’s Medical Marijuana Use Registry, valid cardholders are becoming increasingly worried about the potential implications that may arise with regard to their employment status. Both employers and employees alike are confused as to what is necessary in the face of conflicting and arbitrary state and federal laws. Concordantly, there is widespread concern among medical marijuana patients that are worried about their job security. While many implications of Amendment 2 have yet to be fully fleshed out, there are at least a few seemingly steadfast rules and trends that offer some guidance to the ill-defined employment restrictions in Florida.

The concept of a “Drug Free Workplace” is both vague and outdated, and like most states, Florida does not recognize a right to privacy in the workplace to stop employers from drug testing employees. Currently, the issue turns upon the definition of what exactly constitutes a “Drug Free Workplace,” especially in a state with a legal medical marijuana program. While no provision of the Drug Free Work Act promulgates drug testing of current or prospective employees, employers in Florida are still incentivized to test, as federal programs allow for cuts on insurance premiums for employers that opt for such screening. Nationwide, it is estimated that upward of 57% of employers drug test their employees to some degree. However, the progressive acceptance of medical marijuana use has made many employers rethink and revise their policies to accommodate legal marijuana patients. Government contractors, federal employees, and safety-sensitive positions are almost guaranteed to still be screened, but a growing trend among private companies is to exclude marijuana metabolites from drug tests altogether for regular employment, as many companies are realizing inherent loss of talented workers due to archaic drug policies.

Unlike tests for other Schedule I drugs or alcohol intoxication, which indicate a very narrow timeframe of ingestion, tests for marijuana metabolites simply cannot give an employer accurate information as to the location, nor a timeframe of consumption or possible inebriation. Metabolites from marijuana can stay detectible in a patient’s system for weeks after use. Moreover, consumption of products that are low in THC but high in CBD and other cannabinoids may still cause an employee to test positive on a drug test. This suggests that patients are being unfairly targeted for off-work use, especially when such use has absolutely no relation to job performance. Employers should be particularly aware of this when crafting internal workplace policies, as “zero tolerance” rules from the past could leave employers at risk for future legal challenges.

The legal landscape begs the question: Can a medical marijuana patient be fired for testing positive in Florida? Unfortunately, the answer to this question has historically been yes, but recent trends in the law and public perception may change things quickly. Nevertheless, Amendment 2 still does not currently give patients civil rights protections for the purposes of employment discrimination. Just as Florida does not recognize a right to privacy at work to bar drug testing, the law affords no right to patients that would allow for marijuana to be consumed at work under Amendment 2.

Fortunately, the Florida patient is not ultimately doomed: two federal laws remain key in possible stateprotection for employees: the Americans with Disabilities Act (ADA) and the Controlled Substances Act (CSA). The ADA provides civil protections to employees across the country with disabilities and conditions in all aspects of employment, and requires reasonable accommodation of such disability by an employer. However, the ADA specifically states that an employee “who is currently engaging in the illegal use of drugs,” is not qualified for its protections. Courts have ruled that the ADA’s definition of “illegal use” is controlled by federal law, not state law–ultimately curtailing federal protections for medical marijuana patients. The ADA recognizes the use of prescription pills, and even cites alcoholism as a disability under federal law, but refuses to include state-sanctioned medical marijuana patients.

Nationwide, however, state regulations are changing rapidly and courts in many jurisdictions are starting to rule in favor of patients. Roughly 13 states have created laws that protect medical marijuana users from employment discrimination in some way. Three recent cases from Connecticut, Massachusetts, and Rhode Island, similarly ruled that discrimination of a current or prospective employee solely on the basis of medical marijuana use was impermissible under state law, citing undue burden on the patient’s disability itself. Such a challenge has yet to be litigated in Florida, but resolve of some sort is likely to be expeditious. Until then, some Florida employers seem content upholding outdated policies, all while turning a blind eye to alcohol and prescription drug use.

In the face of prudence and public support, the Florida legislature must enact civil protections for Florida medical marijuana patients sooner rather than later, otherwise the issue will likely be hashed out in court.

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