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What Does Florida’s Medical Marijuana Law Mean for Employers?

Many employers in Florida are familiar with Amendment 2, which legalizes medical marijuana for qualifying individuals. However, fewer are aware of how the law will actually impact them since becoming effective January 2, 2017. The implications involved when an employee is eligible to procure medical marijuana are complex, under both federal labor laws and state regulations: Amendment 2 raises questions for employers regarding drug testing and wrongful termination for violating zero tolerance policies.

Because the Florida Department of Health has until June 2017 to issue regulations to provide guidance to employers, companies have little direction on how to proceed. A Florida labor and employment lawyer can offer advice and assistance to employers seeking some clarity on how to manage their employees.

History of Florida Law Regarding Marijuana Use

Amendment 2 is not the state’s first foray into medical marijuana legalization. Governor Rick Scott signed a law in 2014 allowing physician to provide prescriptions for low dosage marijuana strains. Only terminally ill individuals and patients suffering from seizures qualified to receive medical marijuana. Very few people were actually eligible under this law and the low potency was considered inadequate to impact their suffering. Therefore, Amendment 2 was placed on the ballot for the 2016 election. It passed, with language that included factors to determine what is a “debilitating medical condition” to justify a medical marijuana prescription.

Federal Employment Law Issues

Medical marijuana use is not protected under the Americans with Disabilities Act (ADA) or the Family Leave Medical Act (FMLA), but there are still implications for employers. An employee that has a medical marijuana registration card may reveal the disability, which means an employer must evaluate the situation prior to termination or taking other adverse actions. The FMLA comes into play when an employer must consider whether leave is available and appropriate for the employee to manage his or her condition.

Drug Testing and Zero Tolerance

Courts have held that employers have no duty to accommodate medical marijuana usage or possession at the workplace, under ADA regulations. However, because marijuana remains in a person’s system long after consumption, an employer’s policies on drug testing and zero tolerance may raise issues: An employee’s off-duty medical marijuana usage could lead to a failed drug test. Amendment 2 does not provide an exception to protect workers from zero tolerance policies, so – for now – employers can continue to enforce them.  However, it will be necessary to review future regulations as they’re released.

The key takeaway for Florida employers is that not much will change, unless and until regulations are enacted by the Department of Health. Still, it’s important for employers to communicate their drug policies so there’s no confusion or reason for employees to claim wrongful termination. In addition, employers must revisit their policies when regulations are passed. The experienced labor and employment attorneys at Penichet Law can help you work through the process and provide guidance as Florida’s Amendment 2 is implemented. Please contact our Miami office for more information or questions about your current policies.