By Michael J. Roper, Esquire / Managing Partner – Roper, P.A.
In 2016, 71% of Florida’s voters approved a constitutional amendment to legalize the use of medical marijuana by individuals suffering from debilitating medical conditions.
That law was subsequently codified at Section 381.986, Florida Statutes, which created a regulatory framework for producing and dispensing marijuana to registered, qualified individuals who have received a certification from a qualified physician, for treatment of a qualifying medical condition.
In 2019, the law was amended to allow for the certification and use of smokable marijuana, if recommended by the physician.
In order to be a “qualified patient”, one must be a resident of the state, have been added to the medical marijuana use registry by a qualified physician to receive marijuana or a marijuana delivery device for a medical use and have been issued a patient identification card.
Prior to issuing the certification the physician must, at a minimum, have conducted an in-person examination and medical history assessment of the patient; diagnosed the patient with at least one qualifying medical condition; determined that the medical use of marijuana is appropriate; confirmed that the patient does not have a medical marijuana certification from another physician; and, have added the patient to the medical marijuana use registry maintained by the state. Specified “qualifying medical conditions” for purposes of issuing the certification include cancer, epilepsy, HIV, PTSD, ALS, Parkinson’s Disease and chronic nonmalignant pain. (emphasis added).
Importantly, there is no such thing as a medical marijuana “prescription” in Florida and a physician cannot legally “prescribe” medical marijuana as a drug or medication. That is because marijuana is presently classified as a Schedule 1 drug under the Controlled Substances Act-21 U.S.C. §.801 et seq. Schedule 1 drugs are defined by the federal government as drugs with no currently accepted medical use and a high potential for abuse.
As such, marijuana is classified as being amongst the most dangerous drugs, with a high potential for dependence and not approved for medical use by the FDA. Therefore, under Florida law, a physician merely issues a “certificate” which authorizes the patient to obtain a “patient identification card”, which memorializes his/her qualification to use medical marijuana.
The enactment of this law has created an additional layer of complexity for Florida employers, public and private, when dealing with employees who are legally using medical marijuana.
Florida’s medical marijuana statute does expressly incorporate some important protections for employers. Section 381.986 (15) F.S. provides as follows:
- This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy;
- This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana;
- This section does not create a cause of action against an employer for wrongful discharge or discrimination;
- This section does not impair the ability of any party to restrict or limit smoking or vaping marijuana on his or her private property.
Although there are presently no reported Florida District Court or 11th Circuit appellate decisions which interpret Section 381.986, Florida Statutes, in the employment law context, there have been several administrative law decisions which have upheld an employer’s rights to discharge or discipline an employee for a violation of personnel rules related to the use of medical marijuana. For example, in Marion County Sch. Bd. v. Hickman, Case No. 20-1528-2020, WL 5366027 (Fla. DOAH September 2, 2020) the ALJ found that the School Board had just cause to discharge an employee who tested positive for THC and marijuana metabolites even though the employee was a registered, qualified patient under Florida’s Medical Marijuana Statute. Likewise, in The School Board of Hernando County v. Wiseman, Case No. 20-0612-2020, WL 5366023 (Fla. DOAH September 2, 2020) the ALJ found that School Board had just cause to discipline employee who had a medical marijuana card and had tested positive for marijuana. The ALJ ultimately recommended lesser discipline (reprimand versus discharge) due to mitigating circumstances and the wording of the employer’s disciplinary policies.
More recently, in Jones v. Grace Healthcare, 2021 WL 2678338 (1st DCA June 30, 2021) the First District found that an employer was not required to authorize the employee’s referral to a physician for purposes of examining and writing him a certification to access marijuana. Although the employee was only seeking reimbursement for the medical evaluation, not payment to obtain the marijuana, the court found that “…an evaluation by a physician able to write a certification for [Claimant] to access marijuana treatment could not be medically necessary because as a matter of law, the marijuana itself is neither reimbursable nor medically necessary.”
Therefore, the current state of the law in Florida, seems clear that an employer does not have a legal obligation to accommodate an employee who may be using medical marijuana. If that person violates the employer’s personnel policies regarding the use of marijuana, they can lawfully be disciplined, within the parameters of those policies. It is not a legitimate excuse or justification for them to say that they are using medical marijuana.
In the context of this discussion, it is important that employers who purport to be operating a drug-free workplace program recognize the duties and obligations which are imposed by Florida’s Drug-Free Workplace Act-Section 440.102 Florida Statutes. In short, that statute establishes the criteria for adopting and implementing a drug-free workplace program in order to qualify for workers’ compensation insurance discounts and for the denial of medical and indemnity benefits in event a workers compensation claim is asserted by an impaired employee. It mandates minimum drug testing protocols in order for employer to qualify as having established a drug-free workplace program under this section, including testing for cannabinoids. It also establishes specific guidelines for handling employees who have tested positive for drugs. An employer who fails to comply with those mandates may well be exposing itself to the loss or potential “clawback” of the insurance discounts and loss of the presumption related to a denial of benefits.
Employers are also often concerned that their refusal to accommodate employees who are using medical marijuana, may cause them to run afoul of the dictates of the Americans with Disabilities Act (“ADA”). The ADA requires employers to make reasonable accommodations for qualified workers with disabilities. The Act does not protect illegal drug use, though it does afford some protections for recovering addicts. Marijuana is still an illegal drug under federal law, with no exceptions for medicinal use, therefore its use is not protected under the ADA.
In James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012) the court held that although the plaintiffs were “gravely ill,” and California had legalized medical marijuana use, the ADA did not protect the plaintiffs’ use of the drug. 2005). The court said that the plain language of the ADA only protects drug treatments prescribed by health care professionals when those drugs are not explicitly banned by the federal CSA…like marijuana.
See also, Barber v. Gonzalez, 2005 WL 1607189 (E.D. Wash. The EEOC has recognized that employers are permitted to discipline employees based on marijuana use, even medical marijuana use, based on the statutory language of the Americans with Disabilities Act (“ADA”), and the fact that marijuana remains unlawful under federal law. However, it is important to note that employers still need to be cognizant of so-called “pretextual discharges”, based on marijuana usage. The EEOC has made clear that it will prosecute disability discrimination claims by employees who are alleged to have been terminated for using medical marijuana, if the evidence supports the conclusion that the real reason for the adverse action was a protected disability, and not the marijuana use. See Eccleston v. City of Waterbury, 2021 WL 1090754 (D. Conn. 2021).
There are a number of unanswered questions surrounding this issue which will likely be addressed over the next several years and may well alter the current legal landscape. There have been annual, as yet unsuccessful, bills introduced in Tallahassee, seeking to amend Florida’s medical marijuana statute, in order to remove the current protections for employers. Those amendments would essentially preclude employers from taking adverse employment action against qualified medical marijuana users and require employers to accommodate said usage. There is also a pending bill in Congress seeking to remove marijuana as a controlled substance under the federal Controlled Substances Act. If these legislative changes are implemented, employers will likely have to adjust their handling of this issue and treat marijuana the same way in which they currently treat alcohol or other legal medications which have the ability to impair an individual’s cognitive or physiological functions, i.e., base employment decisions upon evidence of on-the-job impairment.
As with most employment considerations, the proper handling of this issue from a human resources or risk management standpoint will require employers to establish and distribute comprehensive drug testing policies & procedures and uniformly apply those standards throughout the workforce. Managers should be trained to recognize signs of impairment and the importance of being able to document and articulate those factors supporting their determination. Employers will need to be vigilant of future potential changes in the current legal framework and should consult with employment counsel prior to taking adverse employment action, if faced with this question in the future.
Michael Roper was admitted to the Florida Bar in 1985 and is admitted to practice before the United States District Courts for the Middle, Northern and Southern Districts of Florida; the United States Court of Appeals for the Eleventh Circuit; and the United States Supreme Court. Mr. Roper received his B.A. in English and Business, cum laude, in 1981 from Florida State University and his J.D. in 1984 from University of Florida. He is a member of the Orange County Bar Association, Defense Research Institute, Florida Defense Lawyers Association, and American Board of Trial Advocates. Mr. Roper’s civil litigation defense practice includes the representation of clients in bodily injury, wrongful death and casualty suits, civil rights, products liability, employment, commercial trucking, insurance coverage and public entity, in both federal and state courts. He is also a frequent speaker at legal insurance industry, risk management, and other professional conferences. Mike Roper is “AV” rated by Martindale-Hubbell, signifying the highest level of legal ability and adherence to the professional standard of conduct, legal ethics, reliability and diligence in his practice. www.roperpa.com