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The Florida Bar Journal
March, 2017 Volume 91, No. 3
Medical Marijuana’s Effect on Employment Law: The Highs, the Lows, and the Unanswered Questions

by Gregory A. Hearing and Michael A. Balducci

Page 22


After a narrow defeat in 2014, Florida’s Amendment 2 cruised to a landslide victory in November, bringing Florida in line with 27 other states that have legalized at least some form of marijuana use. The state constitutional amendment, which passed with more than 71 percent of the vote, allows medicinal marijuana use by people with debilitating medical conditions, as prescribed by a licensed Florida physician. The new amendment, which became part of the Florida Constitution on January 3, was the natural extension of 2014’s “Charlotte’s Web” law, Florida’s first, much-delayed, and minimal foray into medical marijuana.1

The amendment’s passage signaled only the beginning of a likely protracted legislative battle over the finer points of medical marijuana in Florida:

• Who will qualify to use marijuana medicinally?

• To what levels of tetrahydrocannabinol (THC) will the marijuana be limited?

• How will local ordinances affect marijuana distribution?

• Will the amendment conform to the wait-period requirements, installed by the state’s preexisting “Charlotte’s Web” law?

• And for labor and employment lawyers, how does the addition of medical marijuana to an employee’s medical cabinet affect the rights of employers?

These questions likely will not be answered for some time, as the Florida Legislature still has to pass enabling legislation, and the state Department of Health must promulgate administrative rules by no later than July 2017. Before analyzing the amendment’s effects on employers’ rights, it’s important to understand the facial provisions of the amendment and how those provisions may change as the legislature begins to regulate medicinal marijuana use in Florida. Chief at issue is who, exactly, will qualify for use of medicinal marijuana under the amendment. The amendment, the chief purpose of which is to protect the marijuana’s qualified user and designated distributor from civil and criminal liability, states that a qualified user is “a person diagnosed with a debilitating medical condition in compliance with this section.”2 “Debilitating medical condition” is defined as the following:

• Cancer

• Epilepsy

• Glaucoma

• HIV

• AIDS

• Post-traumatic stress disorder

• ALS

• Crohn’s disease

• Parkinson’s disease

• Multiple sclerosis

• “[O]ther debilitating medical conditions of the same kind or class or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.”3

The scope of “other debilitating medical conditions” will likely be the subject of controversy both in the legislature and the courtroom. While the amendment enumerates 10 diseases and disorders, the “other debilitating medical conditions” clause leaves open the potential for a vast array of other medical conditions to come within the purview of legal medical marijuana use.

We cannot predict with absolute certainty which diseases or disorders will fall into the “other debilitating medical conditions” category, but we can look at other states in which medical marijuana laws use similar ambiguous language as a catch-all provision. In Colorado, the state constitution defines “debilitating medical condition” as any disease or condition that produces conditions such as cachexia; severe pain; severe nausea; seizures, including those that are characteristic of epilepsy; or persistent muscle spasms, including those that are characteristic of multiple sclerosis.4 Washington law is even more broad, defining the phrase as including “diseases, including anorexia, which result in nausea, vomiting, wasting, appetite loss, cramping, seizures, muscle spasms, or spasticity, when these symptoms are unrelieved by standard treatments or medications.”5

It is important to distinguish the “debilitating medical condition” phrasing from more liberal statutory wording, such as California’s “serious medical condition,” which includes migraines, arthritis, and intangible or undiagnosable symptoms like muscle spasms.6 Perhaps no state medical marijuana law is as broad in its covered symptoms as California, and Florida — absent a serious legislative overhaul of the medical marijuana law’s language — will likely not follow in California’s footsteps. With that in mind, based on Washington’s and Colorado’s interpretations of “debilitating medical condition,” odds are good that Florida’s medical marijuana law will mirror those states’ covered symptoms to some degree.

Americans with Disabilities Act
Title I of the Americans with Disabilities Act (ADA) prohibits employers with 15 or more employees from discriminating against disabled employees. Under the ADA, disability is defined as “a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such impairment, or a person who is perceived by others as having such an impairment.”7 An employee may bring a claim under the ADA if he or she is a “qualified individual” with a disability, defined as someone with a disability who — with or without reasonable accommodation — can perform the essential functions of the job at issue.8

If an employee is a qualified individual with a disability, the employer is required to provide reasonable accommodations to the employee so that he or she may perform the essential functions of the job. An employer, although not required to monitor the use of medication, may still be required to provide reasonable accommodation for a disabled employee who must take medication during his or her work shift.9

The ADA — notoriously broad in defining who is a qualified individual with a disability — includes a carve-out excluding any employee or job applicant “who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.”10 Importantly, “illegal drugs” is defined not by state law, but rather the federal Controlled Substances Act (CSA).11 Although legal recreationally or medically in a majority of states, marijuana is a Schedule I hallucinogen under the CSA. As such, marijuana is illegal under federal law despite its varying levels of protection under state law.

Despite medical marijuana’s Schedule I status, the Department of Justice under the Obama administration did not enforce the CSA against “individuals whose actions are in clear and unambiguous compliance with existing state laws permitting the medical use of marijuana.”12 The prosecution of such individuals was “unlikely to be an efficient use of limited federal resources.” But the federal mandate not to enforce the CSA against medical marijuana users has no effect on a state’s sovereign ability to prohibit medical marijuana use. The court in Emerald Steel Fabricators, Inc. v. Bureau of Labor and Indus., 230 P.3d 518, 543 (Or. 2010), stated that “[a]bsent express preemption, a particular policy choice by the federal government does not alone establish an implied intent to preempt contrary state law. A different choice by a state is just that — different.” This interplay is “federalism at work,” and it precludes the state from being bound by the DOL’s decision.13

Perhaps more importantly, there is no guarantee the DOL’s mandate will remain in place for future administrations. Donald Trump, for example, has spoken in favor of medical marijuana, supporting its legalization on a state-by-state basis, but has spoken strongly against its recreational use. Such a sweeping opposition to the drug’s recreational use may conflict with the DOL’s current practice, and presumptive Attorney General Jeff Sessions’ staunch anti-drug status certainly calls the DOL’s mandate into question.

Medical Marijuana and the ADA — A significant issue facing employers subject to the ADA is whether they must provide an accommodation for an employee’s use of medical marijuana. Several state medical marijuana laws are silent on the issue, others ambiguously decline to assert the duty to accommodate, and a few affirmatively provide that medical marijuana users are afforded accommodation under the relevant state human rights law. A proper understanding of the three interpretations is necessary in order to categorize Florida’s medical marijuana amendment.

Many state medical marijuana laws, such as Oregon’s Medical Marijuana Act, specifically provide that an employer has no duty to accommodate an employee who uses medical marijuana.14 But even those laws — seemingly facially clear and unambiguous — have bred litigation regarding their scope and constitutionality. Nonetheless, courts interpreting those “no accommodation” statutes have consistently held that because marijuana is a Schedule I drug under the CSA, and, thus, illegal under federal law, an employer has no duty to accommodate the marijuana-using employee under the ADA. In Emerald Steel, an employer challenged Oregon’s antidiscrimination law, which mirrors the protections of the ADA, and argued that there was no duty to accommodate an employee who used medical marijuana outside the workplace.15 The court held that marijuana’s legality under Oregon law was irrelevant: The CSA preempts Oregon law, and medical marijuana use is still illegal drug use under federal law.16 As such, an employer has no duty to accommodate medical marijuana use simply because it is legal at the state level.

The Emerald Steel court also addressed a potential exclusion to the “illegal drugs” clause of the ADA. The ADA excludes from its prohibition “the use of a drug taken under the supervision of a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of [f]ederal law.”17 An employee who is prescribed medical marijuana, the argument goes, is the user of a drug “under the supervision of a licensed health care professional,” and is, therefore, exempt from the ADA’s “illegal drug” carve-out. The Emerald Steel court, however, held that the words “other uses” “imply that the preceding use…also refers to a use authorized by the Controlled Substances Act.”18 The court acted on the belief that Congress, in drafting that ADA clause, assumed that any prescription for a drug would also be legal under the CSA, rather than legal at the state level but illegal under federal law.19 The argument favoring an “under the supervision” exception, the court explained, is merely a statutory misinterpretation.

Next, a few states, including New York, Arizona, Minnesota, and Illinois, have enacted laws that specifically require an employer to provide medical marijuana accommodations.20 In these states, an employer may be liable under state human rights laws when they fail to accommodate medical marijuana users, effectively giving employees a non-ADA avenue for relief. Employers in these “accommodation states” may accommodate by giving the employee medicinal breaks or modifying his or her work schedule. Still, the duty to accommodate in an “accommodation state” is not infallible, and the employee’s requested accommodation may still be attacked on grounds of undue hardship, direct threat, or reasonability. The direct threat defense, particularly, may derail a medical marijuana user’s request for accommodation, especially if the employee’s job functions include customer service, motor vehicle operation, or tasks that require speed and efficiency.

Finally, courts in states in which medical marijuana laws are silent on the employer’s duty to accommodate nonetheless generally interpret the law as placing no legal duty on the employer to accommodate. For instance, in Ross v. Raging Wire Telecomms, Inc., 174 P.3d 200 (Calif. 2008), Ross challenged California’s Compassionate Use Act (CUA), which does not expressly impose on the employer an obligation to accommodate, nor does it expressly state that the employer has no duty to do so. Ross argued that his employer violated the California Fair Employment and Housing Act (California’s functional ADA equivalent) by failing to make reasonable accommodation for his medical marijuana use. Because the CUA is silent on the issue, Ross argued that an employer’s duty to reasonably accommodate an employee was implicit in the very nature of the law. Failing to read the CUA as such “would eviscerate the right promised to the seriously ill by the California electorate,” Ross argued.21 The court rejected this argument, holding that the voters did not intend to implicitly impose obligations on employers in passing the CUA, and as such, California employers have no obligation to accommodate their employees’ medical marijuana use.22

Unlike the “accommodation states,” Florida’s medical marijuana law contains no express prohibition on discrimination against medical marijuana users under state law; nor does it omit the issue entirely, like California. Florida’s law does, however, speak to the issue similarly to Oregon’s medical marijuana law, in stating that an employer has no duty to accommodate for an employee who uses medical marijuana: “(6) Nothing in this section shall require any accommodation of any on-site medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place.”23 The amendment, therefore, makes it clear that an employer has no legal duty to allow employees to consume medical marijuana at the workplace.

But the amendment does nothing to define an employer’s obligation to accommodate off-site marijuana use, nor does it give any guidance on whether an employer may require a prospective employee to submit to a drug test, for example. If, or when, Florida courts tackle the interpretation of the amendment’s “on-site” provision, they may look to Washington. Washington’s medical cannabis act contains a provision that nearly mirrors Florida’s: “Nothing in this chapter requires any accommodation of any on-site medical use of marijuana in any place of employment….”24 In Roe v. TeleTech Customer Care Mgmt. (Colorado), LLC, 171 Wash. 2d 736 (Wash. 2011), a case interpreting the Washington Code, Roe sued for wrongful termination and argued that the explicit inclusion of the phrase “on-site” signaled the implicit requirement that an employer accommodate an employee for “off-site” use of medicinal marijuana. This implicit requirement, Roe claimed, places an obligation on the employer to accommodate an employee’s off-site medical marijuana use so long as that use did not affect job safety or performance.25 The court disagreed and held that the law’s drafters did not contemplate an implicit employment requirement merely by including the “on-site” language: “This statutory silence supports the conclusion that [the law] does not require employers to accommodate off-site medical marijuana use.”26

With the different statutory constructions in mind, and taking into account Florida’s historically conservative jurisprudence, it seems likely that Florida courts (as well as the 11th Circuit) will fall in line with their sister courts and find that an employer has no duty to accommodate medical marijuana use under the ADA or relevant state laws. The “on-site” language may cause headaches, but an interpretation in line with the court in Roe should clear the air on any language ambiguities. Of course, neither the U.S. Supreme Court, nor any federal circuit court, has affirmatively ruled on the issue of reasonable accommodation and medical marijuana. An employer would be wise to craft its medical marijuana policy with the prospect of change in mind; moreover, an employer should keep in mind the various avenues to defend against a requested accommodation in the event that marijuana ceases to be a Schedule I drug under the CSA.

Family Medical Leave Act
The Family Medical Leave Act (FMLA) allows qualifying employees to take unpaid, protected leave for specified medical reasons, up to 12 weeks.27 Leave may be taken when the employee is unable to work due to a serious health condition, or when time is needed for planned medical treatment of that serious health condition.28 A serious health condition is “an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility; or continuing treatment by a health care provider.”29 Leave may be taken either on a “reduced leave schedule” or “intermittently,” in which an employee takes leave in separate blocks of time when medically necessary.30

Medical Marijuana and the FMLA — Most — if not all — conditions that qualify for use of medical marijuana under the Florida amendment also qualify as serious health conditions under the FMLA. Only the most broad and radically liberal interpretations of the previously discussed “other debilitating medical conditions” language would possibly qualify someone under the Florida medical marijuana law but not under the FMLA. Imagine, for instance, in the expansive world of California’s medical marijuana landscape that even simple, nonmigraine headaches qualified a Californian for medicinal marijuana use. That simple, nonmigraine headache, however, would not qualify the medical marijuana user for leave under the FMLA.31

In situations in which an employee qualifies for both medical marijuana use and leave under the FMLA, and uses medical marijuana as his or her treatment, the employer faces potential conflict between workplace and state policy. Take, for example, the employer who randomly drug tests, and upon an employee’s return from FMLA leave for cancer, she tests positive for marijuana. The employer, who is unaware of the specific treatments the employee took for her symptoms, terminates the employee for violation of the company drug policy. Although the employee took lawful FMLA leave and treated her symptoms lawfully under state law, her positive drug test directly conflicted with a lawful drug-free workplace policy. Does the employer have liability for simply following its own policy? No court has ruled on the issue yet, but it’s likely that marijuana’s illegality under federal law would give the employer a legitimate, nondiscriminatory reason for terminating the employee, thus, removing for a violation of the FMLA.

Intermittent FMLA leave is another potential issue that employers with marijuana-using employees may encounter. An employee who suffers from post-traumatic stress disorder (PTSD) may request intermittent FMLA leave, and in those twice-monthly circumstances in which he or she experiences an episode of PTSD, he consumes marijuana to treat the symptoms. Marijuana, fairly unique among treatments, impairs the user by slowing reaction time. The employer, therefore, faces a complex issue: How does the employer’s right to prevent an impaired employee from performing his or her duties interact with the employee’s right to treatment? Should the employer give intermittent FMLA leave in the employee’s PTSD episodes that last until he or she is no longer impaired? And does the employer then have a duty to conduct a fitness-for-duty exam each and every time an employee takes FMLA leave, just on the off-chance his or her treatment was an impairment-causing marijuana ingestion?

The interplay between the FMLA and the ADA may also be a consideration for employers. Once an employee requests a reasonable accommodation for medical marijuana use, the employer should be on notice of the underlying disability and its potential FMLA claim, even if the ADA reasonable accommodation does not need to be granted. At this early stage in the Florida medical marijuana law’s life, employers can only keep these potential conflicts in mind and prepare policies in the event of an unfavorable judicial interpretation.

Medical Marijuana and Other Employer Issues
Drug-Free Workplace Policies — The Drug-Free Workplace Act requires federal contractors and grantees to agree to keep their workplaces free of illegal drugs, which are defined by the CSA.32 Employers who have created their own workplace drug policies or adhere to the Drug Free Workplace Act can look to states like Washington when considering how Florida’s medical marijuana laws will affect their drug policies. The answer provided by those states’ courts has, much like the analysis of the previously discussed medical marijuana issues, centered on the split between federal and state law over marijuana’s legality. Washington’s Roe court held that the state marijuana law does not protect an employee who uses medical marijuana from termination due to violation of the employer’s drug-free policy: “[T]he Medical Marijuana Act only provides an affirmative defense to the drug crime.”33 Washington’s medical marijuana law does not, therefore, “proclaim a public policy that would remove any impediment (including employer drug policies) to the decision to use medical marijuana.”34

Another consideration for employers is medical marijuana’s effect on the Florida Drug-Free Workplace Act, the successful implementation of which applies a premium credit to the employer’s workers’ compensation premium.35 The act requires an employer develop a drug-free workplace policy and conduct several types of employee drug testing. An employee who tests positive for a drug under the act may lose their employment, but the employee whose test was positive due to the legal use of prescription medication may offer the prescription to the medical review officer (MRO) in an attempt to render the test result negative. Florida has not defined whether medical marijuana may be considered a prescription medication under the act, only that a prescription “includes any order for drugs or medicinal supplies which is written or transmitted by any means of communication by a licensed practitioner.”36 Florida or 11th Circuit courts could feasibly include medical marijuana under “prescription’s” purview, allowing the MRO to excuse the employee from his or her positive test. Conversely, the courts may look to California’s Ross court or Washington’s Roe court, both of which emphatically sided with the employer in granting great deference to the employer’s rights to terminate an employee whose medical marijuana use conflicted with drug-free workplace policies but abided by state law.

“Lawful Activities” Laws — Some states, including California, Colorado, and New York, have “lawful activities” statutes, which prohibit an employer from discriminating against or terminating an employee for engaging in otherwise lawful activities. The argument is premised on the idea that an employer cannot terminate an employee who consumes marijuana so long as marijuana is legal under that state’s law, pursuant to the “lawful activities” statute, which refers to state-protected activities. But the only court to date that has ruled upon the issue has soundly rejected that assumption.

In Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015), Coats, a quadriplegic, legally used medical marijuana under Colorado law and was terminated after testing positive for marijuana in a random drug test. Coats brought suit under Colorado’s “lawful activities” statute, and argued that the consumption of medical marijuana, legal under Colorado law, was protected under the “lawful activities statute.” But the Colorado Supreme Court dismissed the suit, holding that — like in most ADA reasonable accommodation cases — the use of marijuana under state law was preempted by the federal CSA.37 The “lawful activities” statute, therefore, did not protect activities that were still federally unlawful.

Florida has no “lawful activities” statute, but the Coats case continues to illustrate the presumptive judicial interpretation of the conflict between marijuana’s state legality and federal illegality. Some municipalities, however, like Broward County, have begun to expand their local ordinances to prohibit discrimination against employees for their off-the-job activity.38

Conclusion
On January 17, the Department of Health (DOH) issued the preliminary text of its proposed rules for Amendment 2. The rules purport to limit the scope of “debilitating medical condition” to conditions “of the same kind or class as or comparable to” the enumerated conditions, as determined by the Florida Board of Medicine. Such a rule would effectively take the decision to prescribe medical marijuana out of the hands of private physicians and into the hands of the state agency. The proposed rules also place the regulation of medical marijuana dispensaries squarely into the regulations of Florida’s existing “Charlotte’s Web” law, which may have the effect of increasing the existing dispensaries’ stranglehold on marijuana production. The rule propositions immediately came under fire from Florida legislators, including Sen. Jeff Brandes, R-St. Petersburg, who blasted the DOH’s attempts at narrowing Amendment 2 into the confines of the “Charlotte’s Web” law: “Any proposal which seeks to mold the spirit of Amendment 2 into the narrow and flawed law on the books today should be rejected, and a more comprehensive strategy must take priority.” The Florida Legislature’s 60-day session begins March 7 and will likely factor the DOH’s proposed rules during the rulemaking process.

We do not yet know how the Florida Legislature will craft the finer points of the state’s new medical marijuana law, whether it will seek to alter the DOH’s proposed rules, or whether it will buck national trends and provide employee-friendly protections. If the question is, “How much will Florida’s medical marijuana law affect employers in the short term,” then the answer is, “not much.” We know from the aforementioned reported court decisions that medical marijuana laws are still interpreted with the employer’s rights very much in mind. Potential issues implicating the ADA, FMLA, and drug-free workplace policies seem to be decided broadly by the preemption doctrine, and we may only see a change if — or when — marijuana is removed from Schedule I status.


1 Fla. Stat. §381.986.

2 Fla. Const. art. X, §29(a)(2).

3 Fla. Const. art. X, §29(b)(1).

4 Colo. Const. art. XVIII, §14.

5 Wash. Code §69.51A.010 (24)(f).

6 Cal. Health & Safety Code §11362.7(h).

7 42 U.S.C. §12102(1).

8 42 U.S.C. §12111(8).

9 See US Airways, Inc. v. Barnett, 122 S. Ct. 1516, 1521 (2002).

10 42 U.S.C. §12114(a).

11 21 U.S.C. §801, et seq.

12 David W. Ogden, Dep’t of Justice, Memorandum for Selected United States Attorneys (Oct. 19, 2009).

13 Emerald Steel, 230 P.3d at 543.

14 Or. Stat. §475B.413.

15 Emerald Steel, 230 P.3d at 521.

16 Id. at 536.

17 29 C.F.R. §1630.3(a)(2).

18 Emerald Steel, 230 P.3d at 534.

19 Id.

20 N.Y. Health Law, Title V-A, §3369(2).

21 Ross, 174 P.3d at 206.

22 Id. at 206-07.

23 Fla. Const. art X, §29(c)(6).

24 Wash. Code §69.51A.060.

25 Roe, 171 Wash. 2d at 752.

26 Id.

27 29 U.S.C. §2612(a)(1).

28 29 U.S.C. §2612(a)(1)(D).

29 29 U.S.C. §2611(11)(a-b).

30 29 U.S.C. §2612(b)(1).

31 See Alexander v. Boeing Co., 2014 WL 3734291 (W.D. Wash. 2014).

32 41 U.S.C. §8101(a)(2) (1988).

33 Roe, 257 P.3d at 596.

34 Id. at 597.

35 Fla. Stat. §440.102.

36 Fla. Stat. §893.02(24).

37 Coats, 350 P.3d at 852.

38 Broward Cty. Code of Ordinances, Ch. 16 ½, art. III.


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.

Michael A. Balducci is an associate at Thompson, Sizemore, Gonzalez & Hearing, P.A., in Tampa. He defends national employers in a broad range of labor and employment law issues. He is a member of both The Florida Bar and the Hillsborough County Bar Association. He received his master’s degree and his law degree from the University of Florida, where he also served on the executive board of the Florida Law Review.

This column is submitted on behalf of the Labor and Employment Law Section, Leslie Weiner Langbein, chair, and Robert Eschenfelder, editor.

[Revised: 02-24-2017]