Thanks to the Florida Medical Marijuana Legalization Initiative, passed in November of 2016, medical marijuana use is now legal in the state of Florida. This is considered a major victory for patients suffering from debilitating medical conditions, but it’s also raised some concerns for Florida employers.
Senate bill SB 8-A, approved by Governor Rick Scott on June 23, 2017, provided much-needed clarification regarding employer’s rights and responsibilities when it comes to cannabis-related issues in the workplace. Here’s what you need to know.
No Requirement to Accommodate
Some states, like New York, Minnesota, Arizona, and Illinois, require employers to accommodate qualifying employees by allowing the on-site use of medical marijuana. Florida law, however, specifically states that employers are not required to make accommodations for on-site use or for employees working under the influence of marijuana.
The law does not address off-site use, and this topic has not yet made its way to court. However, based on the conservative nature of most Florida employment laws, off-site accommodations are not likely to be required either.
Right to Maintain a Drug-Free Workplace
Florida employers also retain their rights to maintain a drug-free workplace. This is important for several reasons, not the least of which is the worker’s compensation incentives provided to employers under the Florida Drug-Free Workplace Act.
Florida employers retain the right to drug test their employees as long as it is done in a non-discriminatory manner. Random drug testing and tests required under reasonable suspicion continue to be allowed as long as they’re done according to your company’s policies and procedures.
Employers are fully within their rights to maintain zero-tolerance drug use policies and follow your company’s disciplinary procedures for all drug use, including medical marijuana.
Dealing with a Positive Test Result
If you choose to drug test your employees, there is a good chance you will eventually have to deal with a positive test result for a medical marijuana user. Your options vary depending on the employee’s position.
Safety Concerns
If your employees are required to drive or operate machinery as part of the normal course of their employment, continuing to enforce a zero-tolerance drug policy across the board makes sense.
If you give medical marijuana users a pass and they cause an accident or injury during the course of their employment, you could almost certainly be held liable. In cases where Department of Transportation (DOT) regulations come into play, you may be legally obligated to enforce zero-tolerance policies.
Non Safety Sensitive Positions
When dealing with employees who are not in safety-sensitive positions, you have a bit more leeway. If your employee informs you that he or she is a medical marijuana user either before or after testing positive, you may choose to conduct an interview and investigation.
The purpose of the investigation would be to confirm whether the employee legitimately has a debilitating condition. If this is confirmed, the next consideration is whether some accommodation other than drug use may still allow the employee to successfully perform his or her job function. Following the results of your investigation, you may choose to give the employee a pass on your zero-tolerance drug use policy, but are under no obligation to do so.
Liability Concerns
While choosing to give your employee a free pass may limit the employee’s potential attempt to file a lawsuit, it opens up the door for additional liability concerns. Even if you prohibit the employee from driving and performing safety-related functions on the job, there is still an inherent risk that he or she could cause an accident or injury.
In this case, your decision to make an exception to company drug policies could come back at you in the form of a safety-related claim.
Some Final Thoughts
As marijuana laws across the United States continue to develop, the current status-quo is subject to change. Employers should keep a close eye on new lawsuits and trends. Over the coming years, you must be willing to make policy adjustments as needed. In the meantime, it’s advisable to err on the side of caution and seek professional advice when unsure about your best course of action.
