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The Florida Bar Journal
December, 2017 Volume 91, No. 10
Medical Marijuana’s Effect on Employment Law: The Smoke is Clearing

by Gregory A. Hearing and Matthew A. Bowles

Page 30


After Amendment 2 to the Florida Constitution passed in November 2016, allowing qualified physicians to issue a physician certification for the medical use of marijuana by individuals with debilitating medical conditions, a thick haze of unanswered questions arose.1 These questions included: 1) Who would qualify to consume medical marijuana? 2) What maximum concentration of Tetrahydrocannabinol (THC), the chemical compound, which impairs the user, would be permitted? 3) How closely would the enabling statute mirror the original “Charlotte’s Web” law, including the 90-day waiting period? 4) Would the statute provide a clear definition of other debilitating medical conditions? 5) Would local ordinances concerning medical marijuana be preempted by the Florida Legislature? 6) How would the new medical marijuana statute impact the rights of both employers and employees?

With the passage of enabling legislation via Senate Bill 8A on June 9, 2017, and the subsequent signing of the bill by the governor on June 23, 2017,2 the smoke has begun to dissipate as we now have answers to several of these questions. However, the answers to some questions remain unknown or in need of additional clarification.

The definition of who may obtain a physician certification for the medical use of marijuana remains nearly the same in F.S. §381.986 as it was in Amendment 2, because the legislature failed to define or provide greater specificity on the phrase “other debilitating conditions” used in Amendment 2. The qualifying medical conditions under the new law include cancer, epilepsy, glaucoma, HIV, AIDS, PTSD, ALS, Crohn’s disease, Parkinson’s disease, MS, “medical conditions of the same kind of class as or comparable to those enumerated,” terminal conditions diagnosed not by the prescribing physician but a separate physician, and chronic nonmalignant pain.3 While the Florida Department of Health has begun issuing notices of proposed regulations on medical marijuana, they determined that “qualifying debilitating medical condition” would have the same definition as “qualifying medical condition” in §381.986(2).4 Modifying the previously enacted “Charlotte’s Web” law, the legislature removed the 90-day waiting period and, surprisingly, failed to limit the maximum concentration of THC that medical marijuana may contain.5 It is, therefore, reasonable to assume that some versions of medical marijuana products will be extremely potent, containing high percentages of THC.

The new law explicitly preempts county or municipal ordinances, with the exception of permitting ordinances banning medical marijuana dispensaries from being located within the county or municipality.6 Additionally, local ordinances may limit the location of the dispensaries, but the limitation may not preempt state limitations and they may not go further than limits on the location of local pharmacies.7 Thus, counties and local municipalities are essentially left with two options: either allow or ban dispensaries in their communities.

One of the most interesting parts of the new law is its explicit prohibition on the administration of medical marijuana by smoking.8 However, the legislature allowed for possession of the medical marijuana flower for vaping.9

Does the New Statute Change the Law of the Workplace?
With the passage of §381.986, the legislature directly addressed several employment issues, thus, providing significant guidance for employers. Although failing to define employer, the statute expressly denies the creation of “a cause of action against an employer for wrongful discharge or discrimination.”10 The legislature went a step further by expressly stating that employers are not required to accommodate an employee’s use of medical marijuana at work.11 Additionally, the statute expressly prohibits medical marijuana users from using medical marijuana at their place of employment without their employer’s permission.12 For employers with drug-free policies and programs, §381.986(15) provides that “this section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy.” The statute further provides that it does not allow reimbursement on workers’ compensation premiums if an employer chooses to allow medical marijuana use by their employees.13 So, what does this express inclusion of employment-related language in §381.986 mean for employers?

The Americans with Disabilities Act
The Americans with Disabilities Act (ADA) not only prohibits employers of 15 or more employees from discriminating against qualified individuals with disabilities, but also requires such employers to, within reason, provide accommodations, enabling such individuals to perform their essential job functions.14 The ADA may require employers to allow disabled employees to take their medications at work as an accommodation.15 However, the ADA does not protect the use of illegal drugs by employees with disabilities.16 The definition of illegal drugs under the ADA is derived from the definition found in the Controlled Substances Act (CSA).17 Under the CSA, marijuana continues to be an illegal substance under federal law, so its possession and/or use, in any form, is prohibited under the CSA.18

Similar to the ADA, the Florida Civil Rights Act (FCRA) protects disabled employees from discrimination by an employer.19 However, because Florida’s medical marijuana law expressly states that employers have no requirement to accommodate medical marijuana use for disabled employees while at work and expressly prohibits the creation of a cause of action for wrongful discharge or discrimination, employers deciding not to accommodate on-site use of medical marijuana should have little to fear from employees attempting to bring suit against them under the ADA or the FCRA. If the ‘no requirement to accommodate’ language is not a clear enough showing of legislative intent, the statute expressly prohibits the use of medical marijuana at work without employer permission.20

Section 381.986 is silent as to whether employers must accommodate off-site use of marijuana.21 So, may Florida employers prohibit their employees’ off-site use of medical marijuana? Several state courts in states that have authorized the possession and use of medical marijuana, but which lack a statutory prohibition against off-site use, have addressed this very issue. For instance, in Roe v. TeleTech Customer Care Mgmt., 257 P.3d 586 (Wash. 2011), the court faced the question of whether the Washington Legislature intended to create an implicit requirement for employers to accommodate off-site medical marijuana use by its silence on the matter in the statute. The Roe court found that the failure to include any language regarding off-site accommodations signified the Washington Legislature’s intent that employers do not have to accommodate such medical marijuana use.22 In a more recent case, Callaghan v. Darlington Fabrics Corp., No. PC-2014-5680, 2017 WL 2321181 (R.I. Super Ct. May 23, 2017), the trial court, when addressing the nearly identical question of off-site medical marijuana use as addressed by the Roe court, determined that, by failing to address off-site accommodations in Rhode Island’s medical marijuana statutes, “the [g]eneral [a]ssembly contemplated that the statute would, in some way, require employers to accommodate the medical use of marijuana outside the workplace.”23 Notably, there is a significant difference between Rhode Island’s medical marijuana law and §381.986. The Rhode Island Legislature was silent about whether employer discrimination based on medical marijuana use created a cause of action, whereas, §381.986(15) expressly prohibits any such cause of action.

Finally, in Emerald Steel Fabricators, Inc. v. Bureau of Labor and indus., 230 P.3d 518 (Or. 2010), the Oregon court system considered whether the medical marijuana statute, which expressly provides that employers have no duty to accommodate medical marijuana use on-site, requires employers to accommodate off-site use. The court used the current illegality of the possession or use of marijuana under the CSA to find that Oregon employers had no duty to accommodate medical marijuana use outside the workplace.24

Thus, the CSA, along with the usual defenses such as direct threat, undue hardship, and reasonability, should provide Florida employers strong defenses supporting their refusal to accommodate off-site medical marijuana use. All of this begs the question: Would it be easier for employers simply to accommodate an employee’s use of medical marijuana, thus, avoiding any potential discrimination or failure-to-accommodate claims? The answer may depend on how individual employers resolve a variety of other related issues discussed below.

Workers’ Compensation Issues
A Florida employer’s decision as to whether to allow its employees to consume medical marijuana could have a significant impact on its workers’ compensation premiums. Florida’s Worker’s Compensation statute, F.S. §440.102, impacts how an employer may operate its drug-free workplace program. If an employer operates such a program, the employer may be able to receive discounts on its workers’ compensation premiums through its insurer.25 Under the new medical marijuana law, “marijuana as defined in this section, is not reimbursable under [Ch.] 440.” Therefore, employers who allow medical marijuana use under their drug policies may not be entitled to workers’ compensation discounts.26 Clearly, in passing §381.986, the legislature did not intend for medical marijuana to interfere with Florida employers’ current drug policies and programs. Accordingly, not only would allowing medical marijuana use potentially increase an employer’s workers’ compensation premiums, the employer would face the inherent liability and danger that accompanies impaired employees at the workplace.

Drug-Free Workplace Act Issues
Employers covered under the federal Drug-Free Workplace Act, 41 U.S.C. §8101, et seq., should be protected from liability for terminating employees who consume medical marijuana due to the preemption of the CSA. In Carlson v. Charter Communications, LLC, 2017 WL 3473316 (D. Mont. Aug. 11, 2017), Charter Communications, which was a federal contractor at the time, required to abide by the federal Drug-Free Workplace Act, subsequently fired an employee for using medical marijuana outside of work. The Carlson court found that the CSA preempted Montana’s medical marijuana law and dismissed the employee’s wrongful termination claim.27

So, how will Florida’s Drug-Free Workplace Act fair?28 Section 381.986 expressly provides that an employer is not limited in how it implements its drug-free policy or program.29 By including such express language, Florida courts will likely find that the Florida Legislature in no way intended to carve out an exception for medical marijuana in Florida’s Drug-Free Workplace Act.

The biggest point of contention could be with the use of the term “prescription” in the Drug-Free Workplace Act. That act defines prescription as “any order for drugs . . . written or transmitted . . . by a licensed practitioner.”30 When a Medical Review Officer (MRO) reviews a positive drug test, the MRO may consider whether the employee had a prescription for the medication when interpreting the results of the positive test.31 Although §381.986 references a physician certification for the medical use of marijuana, the Florida Legislature has failed to expressly indicate whether medical marijuana will be included in the definition of “prescription.” Nonetheless, the courts likely will look to the legislative intent of the express language in §381.986, which does not limit an employer’s right to enforce its drug-free policies and programs.

The Family and Medical Leave Act
Another significant, but as yet unanswered question as it relates to consuming medical marijuana, which will undoubtedly arise, is how an employer should address an employee’s request for leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. §2601, et seq.? The FMLA allows a qualified employee to take unpaid leave for up to 12 workweeks if the employee meets one of the enumerated conditions in the statute, including if the employee is experiencing a serious health condition prohibiting the employee from performing functions essential to his or her position.32 The FMLA defines “serious health condition” in such a way that, while not all serious health conditions under the FMLA will qualify as a health condition under §381.986(2), all qualifying health conditions under §381.986(2) will likely qualify as serious health conditions for FMLA leave purposes.33

The interplay between the FMLA and ADA should make employers cautious about whether the need for FMLA leave signals that an employee may need an accommodation under the ADA. Although not all FMLA serious health conditions will qualify as an ADA-covered disability, which would require an accommodation by the employer, all disabilities under the ADA will qualify as a serious health condition that may require the granting of FMLA leave.34

While an employer may be required to grant FMLA leave to a qualifying employee with a serious health condition, the employer must be cognizant of the fact that an employee may consume medical marijuana as part of his or her treatment during FMLA leave. A dearth of authority exists as to whether an employer may terminate an employee who consumes medical marijuana while on qualifying FMLA leave. Similarly, little authority exists as to how an employer should approach random or reasonable suspicion drug testing pursuant to its drug-free workplace policy or program upon an employee’s return to work at the expiration of qualifying FMLA leave.

Finally, because the FMLA allows for intermittent leave,35 it is quite foreseeable that an employee might request intermittent leave under the FMLA, so that, unbeknownst to the employer, the employee could consume medical marijuana off-site. This can lead to a multitude of significant questions for an employer. For instance, suppose an employee who qualifies for intermittent leave due to a serious health condition for which the employee has received a physician certification for the medical use of marijuana, such as debilitating migraines, takes intermittent leave to vape medical marijuana off-site. Would the employer be permitted to inquire as to whether the employee consumed medical marijuana while on leave? The answer depends on many factors, including but not limited to, whether the employer is a federal contractor subject to the federal Drug-Free Workplace Act; whether the employer maintains its own drug-free workplace policy; and whether the employer prohibits the use of illegal drugs by its employees on or off the employer’s premises. Suppose, instead, the same employee lawfully uses medical marijuana with a high percentage of THC and, upon returning to work, fails a random drug test and is terminated. If the employee sues, claiming the termination violates the FMLA, could the employer rely upon the CSA to support a finding that the employer did not violate the FMLA by terminating an employee who consumes what remains an illegal substance under federal law? Scenarios like these portent much future work for labor and employment law practitioners.

Conclusion
Section 381.986 has provided some much needed guidance for Florida employers. Ultimately, unless and until the CSA is amended to exclude medical marijuana as an illegal substance, employers do not have to accommodate employees who seek to consume medical marijuana on or off the job. Moreover, §381.986 makes clear that it does not create a cause of action for wrongful discharge. While some questions remain unanswered, Florida employers know much more about their rights after the enactment of this groundbreaking law.


1 This article is a follow-up to Gregory A. Hearing & Michael A. Balducci, Medical Marijuana’s Effect on Employment Law: The Highs, the Lows, and the Unanswered Questions, 91 Fla. B. J. 22 (Mar. 2017).

2 Codified as Fla. Stat. §381.986.

3 Fla. Stat. §381.986(2).

4 43 Fla. Admin. Weekly 2698 (June 16, 2017).

5 Fla. Stat. §381.986.

6 Fla. Stat. §381.986(11).

7 Id.

8 Fla. Stat. §381.986(1)(j)(2).

9 Id.

10 Fla. Stat. §381.986(15).

11 Id.

12 Fla. Stat. §381.986(1)(j).

13 Fla. Stat. §381.986(15).

14 42 U.S.C. §12111(8).

15 See U.S. Airways, Inc. v. Barnett, 122 S. Ct. 1516, 1521 (2002).

16 42 U.S.C. §12114(a).

17 42 U.S.C §12111(6).

18 21 U.S.C. §801, et seq.

19 Fla. Stat. §760.10(1).

20 Fla. Stat. §381.989(1)(j)(5)(c).

21 Fla. Stat. §381.986(15).

22 Roe, 257 P.3d at 596.

23 Callaghan, No. PC-2014-5680, 2017 WL 2321181.

24 Emerald Steel Fabricators, Inc., 230 P.3d at 518.

25 Fla. Stat. §627.0915.

26 Fla. Stat. §381.986(15).

27 Carlson, 2017 WL 3473316.

28 Fla. Stat. §893.02(24).

29 Fla. Stat. §381.986(15).

30 Fla. Stat. §893.02(24).

31 Fla. Stat. §112.0455(8)(b)(2).

32 29 U.S.C. §2612(a)(1).

33 29 U.S.C. §2611(11).

34 42 U.S.C. §12102(1).

35 29 U.S.C. §2612(b)(1).



Gregory A. Hearing is a shareholder with the management labor and employment law firm of Thompson, Sizemore, Gonzalez & Hearing, P.A. He has practiced management labor and employment law his entire career and is board certified in labor and employment law, civil trial, and education law. He is a graduate of the University of the South where he graduated, magna cum laude, in 1986 and currently serves on its board of trustees. He received his law degree from the Florida State University College of Law, cum laude, in 1989, where he served on the Florida State University Law Review.

Matthew A. Bowles is an associate at Thompson, Sizemore, Gonzalez & Hearing, P.A. His practice is in the representation of both public and private sector employers in all matters related to labor and employment law. He earned his undergraduate degree at the University of Louisville and his law degree at the Stetson University College of Law.

This column is submitted on behalf of the Labor and Employment Law Section, Zascha Blanco Abbott, chair, and Robert Eschenfelder, editor.

[Revised: 12-06-2017]