Amendment 2 has passed – it’s no longer a pipedream (no more puns, we promise). So now what for employers? Will it gut employers’ drug-free workplace policies? Will employers be required to grant accommodations to prescription card carrying users (e.g. provide a location for such employees to light up during the work day?). Will employees be able to successfully sue employers who terminate them for failing a drug test due to a positive test for medical marijuana use? There are sure to be other questions and issues arise, some of which may take court cases to fully answer, but let’s take a look at what we know:
- A Constitutional Amendment takes effect the first Tuesday after the first Monday in January. That would be an effective date of January 3, 2017;
- The Florida Department of Health will then have six months to pass implementing regulations;
- The Department must begin issuing patient and caregiver identification cards, and registering MMTC’s (Medical Marijuana Treatment Centers) a/k/a/ “dispensaries”, within nine months from that effective date.
While the infrastructure and implementing regulations are ramping up for the new law and the industry it will spawn, employers may be well served to use the time now to survey their approach to the law. Consider these facts:
- The Amendment specifically states that it shall not require accommodation in a place of employment.
- It specifically states that it does not purport to give immunity under federal law.
Why are these facts important?
For starters, marijuana remains illegal under federal law. The Controlled Substances Act (CSA) classifies marijuana as a Schedule 1 drug, i.e. just as “illegal” as heroin in that sense under federal law. The U.S. Department of Justice has essentially decided not to “enforce” the CSA against bona fide medical marijuana users in states legalizing it for that purpose – but the substance itself remains illegal, technically speaking, under federal law.
As a result, in several court cases in other states with laws comparable to Florida’s, the courts have upheld an employer’s right to enforce its drug free workplace policy, even if it results in termination of employment, because marijuana is illegal under federal law – even though the use was legal under the state’s law.
Moreover, since the Florida law specifically provides no duty to accommodate in places of employment, it’s hard to imagine that any claim under the Americans with Disabilities Act could/would prevail.
Put simply, the Florida Constitutional Amendment leans toward “employer-friendly” as judged against the various types of such laws implemented in other states thus far. The law, in its present form, will allow a Florida employer significant discretion as to how it wishes to fashion its substance abuse or drug-free workplace policy. Prior to the January 3, 2017 effective date it would be wise to:
- Review your company’s current policies on substance abuse, drug-free workplace, testing, etc.
- Determine if your company has a “zero tolerance” approach. Does it wish to continue that even with respect to medical marijuana? If so, the policy should be revised to clearly state that position.
- If your company has a Workers’ Compensation compliant drug-free policy/program it may be required to continue enforcement against all use of marijuana in order to remain compliant and eligible for premium discounting. Check with your carrier.
- Decide whether your company wishes to revise its policy to allow for what might be viewed as a more lenient approach to medical marijuana users. This might include requiring employees to provide their medical marijuana users registration cards/prescriptions to explain a positive test result, but also ensuring that, no matter the circumstances, such employees not work in an impaired state.
Which direction a company wishes to go may also depend on the safety-sensitive nature of the work. For example, a construction company may deem it wise to continue with its zero tolerance policy, where an entirely white-collar office enterprise may feel differently. The law currently allows the discretion to fashion the approach that is consistent with your company’s needs and values, but now is the time to address it.