Labor and Employment E-lert: Medical Marijuana on Your Mind?

Medical marijuana is on the minds of Florida legislators this month. On November 18, 2019, Florida state Senator Lori Berman filed Senate Bill 962 which seeks to protect medical marijuana users in the workplace. This bill is similar to House Bill 595 which was filed on November 8, 2019 by Representative Tina Polsky. These bills are intended to prohibit employers from engaging in discrimination against employees who use medical marijuana, and as currently proposed, would include a bar on firing employees for positive drug tests under certain circumstances. The newly proposed Senate bill applies to both public and private employers, and creates a cause of action against employers who takes an adverse action against an employee in violation of the law.

Florida’s medical marijuana laws do not currently protect employees in the workplace with respect to the use of medical marijuana, and many employers have drug-free workplace policies that continue to prohibit use or possession of the substance notwithstanding any medical authorization an employee may have received. The bill filed by Senator Berman does not allow employees carte blanche with respect to the use of marijuana in the workplace. Employers could still prohibit its use with respect to "safety-sensitive" duties, and punish employees who use or possess it during normal business hours.  Further, an "adverse personnel action" could be taken against an employee if the employer can show that the employee’s use of medical marijuana is impairing the employee’s ability to perform his or her job duties.

Employers should keep in mind that even if the Florida Legislature passes a law such as that described above, marijuana remains an illegal drug under federal law.  As a consequence, drug free workplace policies prohibiting the use and possession of marijuana will likely remain viable even if the Florida Legislature passes a law protecting employees who use medical marijuana from discrimination on that basis in the workplace. That being said, because Florida Senate Bill 962 creates a cause of action against employers, if it is enacted employers will need to consult with their employment counsel and reevaluate their drug-free workplace policies and procedures, drug testing processes and safety-sensitive positions to determine if changes are necessary.

GrayRobinson will continue to monitor these bills and keep you updated.

Sarah Reiner
GrayRobinson, P.A.
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Suite 1400
Orlando, Florida 32801
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