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With medical marijuana a reality, what do employers need to know? - II

In our previous post, we discussed how even though Florida is now officially among the majority of states in which marijuana has been legalized for medicinal purposes, the state law codifying the creation of the medical pot program has nevertheless provided state health officials with six months to devise a distribution strategy.

We also discussed how this is perhaps good news for Sunshine State employers, as it will provide them with more time to consider how they want to proceed in this new legal landscape, which is noticeably silent regarding the important issue of employer rights and responsibilities.

This silence is particularly profound in relation to the important issue of reasonable accommodations, as it remains unclear whether Florida employers can continue to enforce their zero-tolerance workplace drug policies without risking legal exposure.

Legal experts indicate that those employers intent on maintaining a firm no drugs in the workplace stance can derive some measure of comfort from the fact that the language of Amendment 2 does not include any provisions expressly mandating that 1) employers must provide medical marijuana-related accommodations or 2) that holders of medical marijuana cards are part of a protected class warranting antidiscrimination protection.

Indeed, 10 states with medical marijuana programs, including Illinois, New York and Arizona, have such language in place.

Furthermore, legal experts have pointed out that Florida employers taking this stance can also look to the experiences in other medical marijuana states that don't have such language in place, including Colorado, Oregon and New Mexico.

Here, the argument was successfully advanced by multiple employers with zero-tolerance drug policies that since marijuana is still illegal under federal law (i.e., the Controlled Substances Act), they cannot be forced to accommodate its use by applicants and/or employees.

While these decisions reached in other states are by no means binding on Florida, legal experts point out that they could nevertheless receive favorable treatment or prove persuasive to the state court inevitably tasked with deciding this issue.   

It will be fascinating to see how all this unfolds in the coming months. In the interim, if would like to learn more about your responsibilities as an employer or have questions about medical marijuana compliance, consider speaking with a skilled legal professional.

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