United States: Impact Of Florida's Medical Marijuana Bill On Employers

On June 9, 2017, Senate Bill 8-A implementing Amendment 2 was sent to Governor Rick Scott for his signature ². Both the House of Representatives and Senate voted in favor of the bill, and Scott said that he "absolutely" intends to sign the medical marijuana bill passed by the state legislature.

Under Amendment 2, a caregiver or "qualified patient," certified by a physician as having a debilitating medical condition, may use or handle medical marijuana. However, because marijuana is still illegal under the federal Controlled Substances Act (CSA), a physician may not prescribe medical marijuana. Instead, the physician may only certify than an individual is a "qualified patient." The patient must then take this certification to a Medical Marijuana Treatment Center to obtain medical marijuana. These centers will be regulated by the Florida Department of Health. The Legislature will require the qualifying patient and/or caregiver to have an identification card to demonstrate their legal entitlement to possess medical marijuana.

As far as employers are concerned, Amendment 2 specifically states that nothing in the section shall require an accommodation of any on-site medical use of marijuana in any place of employment, or of smoking medical marijuana in any public places. Senate Bill 8-A further amends Florida Statute §381.986 to provide:

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. Marijuana, as defined in this section, is not reimbursable under chapter 440 [Florida's Workers' Compensation Law].

Furthermore, Senate Bill 8-A states that "medical use" does not include the use or administration of marijuana in "a qualified patient's place of employment, except when permitted by his or her employer". Therefore, Florida employers may prohibit employees from smoking or consuming medical marijuana in the workplace or working under the influence of marijuana.  However, Senate Bill 8-A does not address how employers should treat an employee's off-duty use of medical marijuana, provided that the employee is not under the influence during work hours.  As with most new laws, litigation is inevitable, and the court decisions will likely provide guidance on this and other issues affecting employers.