The legalization of medical marijuana in many U.S. states, including Florida, has created new questions for employers. One of the hottest topics right now is the subject of ADA compliance and the use of medical marijuana in the workplace.
When the constitutional amendment was first passed in Florida in November of 2016, the law clearly explained who was eligible to receive a medical marijuana prescription. It did not, however, provide any direction regarding how employers were to handle employees who now have the legal right to consume cannabis.
This changed in on June 23rd, 2017, with the signing of a statute that provided employers with the clarity they've been looking for.
Maintenance of a Drug-Free Workplace
Section 381.986 of the Florida Statute does not restrict an employer's right to require a drug-free workplace. It further states that employers are not required to make accommodations for employees to consume medical marijuana at work. The statute does not give employees the right to sue for wrongful termination or discrimination based on their medical marijuana use.
ADA Requirements vs. "No Accommodation" Provision
Under the Americans with Disabilities Act (ADA), employers are obligated to make "reasonable accommodations" for employees with certain medical conditions. One might think that a medical marijuana prescription falls under this umbrella, but the new laws clearly state that it does not. This is due, in part, to the fact that consumption of cannabis, whether with a prescription or not, is still technically illegal under Federal laws.
The new law addresses the "accommodation" of allowing marijuana consumption on-site but falls short of addressing how employers should handle off-site use. This lack of clarification is sure to lead to more legal action down the road.
Workplace Drug Testing
The Florida Drug-Free Workplace Act gives employers incentives in the form of worker's compensation insurance discounts for drug testing their employees and maintaining drug-free workplace policies. Private employers who do not participate in the program still maintain the right under Florida law to drug test their employees at any time.
Employees who are terminated for testing positive for medical marijuana will inevitably become plaintiffs in the court system. It remains to be seen whether the courts will side with employers or employees on this point. The conservative leanings of this new statute suggest that employers may come out on top.
The Bottom Line
Until Federal laws regarding marijuana change, it's likely that employers will continue to be within their rights when requiring employees to refrain from marijuana use, regardless of whether or not they're in possession of a prescription.
Employers should remain vigilant, however, as this is an ever-changing legal landscape. If you have questions or concerns regarding the legalities of your business practices, it's always in your best interest to consult with a legal professional.