There can be no doubt that Americans' views on the legality of marijuana use for both medicinal and recreational purposes has shifted over the past few years. A recent survey conducted by Fextel, Inc. and StPetePolls.org found that over 73% of Floridians would support a constitutional amendment to allow the use of medical marijuana to treat debilitating medical conditions, and 58% support the legalization of marijuana for recreational use. Indeed, the Florida Legislature recently passed, and Gov. Rick Scott signed, a bill that now exempts a limited class of individuals with certain medical disorders from criminal penalties for using and possessing low-THC cannabis ordered for patients by their physicians.

Notwithstanding this apparent shift in attitudes, one thing remains clear in Florida: recreational or unauthorized use of marijuana remains illegal and can be valid grounds for termination of an employee.

In the case of Christopher Martin v. Estero Fire Rescue, 30 AD Cases 579 (M.D. Fla. 2014), recently decided in the United States District Court for the Middle District of Florida, the court held that a former city firefighter's depression and anxiety were not ADA-protected disabilities for purposes of his employment bias claim after he was discharged for testing positive for marijuana use allegedly related to his conditions. Firefighter Christopher Martin sued his former employer, Estero Fire and Rescue, alleging that his termination for testing positive for marijuana use constituted unlawful discrimination and retaliation in violation of the Americans with Disabilities Act (ADA) and the Florida Civil Rights Act (FCRA). Martin tested positive for marijuana use and was terminated pending the results of an investigation and due process hearing regarding the positive test. During the employer's investigation into the positive drug test, Martin for the first time informed his employer that he suffered from depression and anxiety with flare-ups of bipolar tendencies, and he admitted using marijuana "in regard" to these conditions. As a requested reasonable accommodation under the ADA and the FCRA, Martin sought a waiver of any discipline for the positive drug test and leave to seek treatment for his ailments, both of which were denied.

The court performed the traditional ADA analysis to determine whether Martin's alleged afflictions constituted a serious health condition that substantially limited a major life activity, and also whether he was regarded as having a disability by his employer. In determining that Martin did not suffer from a condition that substantially limited a major life activity, the court emphasized that he offered no evidence, other than his own testimony, that he suffered from depression or anxiety, and he failed to offer any medical records or testimony from any medical personnel that he had been diagnosed with depression and/or anxiety. The court further noted that Martin failed to provide evidence that his employer regarded him as impaired by depression or anxiety. As a result, the court ruled in favor of Estero Fire Rescue on the disability claims and turned its attention to Martin's claim of retaliation.

In denying Martin's claim for retaliation, the court stressed that the employer had a legitimate, nondiscriminatory reason for Martin's termination, namely the positive test for marijuana. Because Martin was unable to show that his employer's reliance on the positive drug test was merely a pretext for a discriminatory reason, the court ruled in favor of the fire department and against Martin.

The takeaway for employers from this case is that no matter how far public opinion has come with regard to marijuana use in America and the State of Florida, it remains the case that recreational or unauthorized use of an illegal drug by an employee gives an employer a green light for termination.