Executive Summary: As employers in Florida prepare for the new year, many may wonder how Florida’s new medical marijuana law will impact them. In the November 2016 election, Florida as well as Arkansas, North Dakota and Montana all approved their respective medical marijuana amendments, bringing the total to 28 states and the District of Columbia that now allow comprehensive public medical marijuana programs. Additionally, Maine, Massachusetts, Nevada, and California voted to legalize recreational marijuana, meaning a total of eight states and the District of Columbia now permit the recreational use of marijuana. While the text of Florida’s medical marijuana law provides little guidance for employers, an examination of how other states have handled employment issues under similar laws provides some insight into what Florida employers can expect.

Florida’s History of Medical Marijuana

In 2014, Florida Governor Rick Scott signed into law SB 1030, also known as the “Charlotte’s Web” bill, which legalized a low-THC strain of marijuana for terminally ill patients and patients suffering from chronic seizures and/or severe muscle spasms. Many medical marijuana advocates viewed this law as inadequate because of the small percentage of individuals covered and the low potency of the marijuana permitted. In 2014, a more comprehensive medical marijuana program (Amendment 2) was brought to the ballot, but did not receive the necessary 60 percent of votes to be enacted. In 2016, Amendment 2 was proposed again with more clarity regarding important measures that were previously criticized, such as what constitutes a “debilitating medical condition.” On election night, Amendment 2 easily passed, receiving over 70 percent of the votes in its favor.

Now What?

Now that medical marijuana is legal in Florida, employers are inevitably going to run into some issues relating to the new law. The language of the Amendment provides little insight into its potential effect on employers. It does state, however, that the law does not require any accommodation of on-site medical use of marijuana in any place of employment. Most states’ medical marijuana statutes contain similar carve-out exemptions for employers. On the other hand, some state laws explicitly prohibit discrimination against individuals on the basis of having a medical marijuana registration card. Florida’s statute does not contain any such prohibition. Therefore, Florida employers can prohibit employees from smoking or consuming medical marijuana at the workplace. However, for more guidance and direction, employers will have to wait for the Department of Health to promulgate regulations necessary for the implementation and enforcement of the new law. Fortunately for Florida employers, other states have already legalized medical marijuana. This allows us to survey how those other states have handled employment issues and get a better sense of what may lie ahead for Florida employers.

ADA and FMLA Concerns

A big concern for employers is what effect the legalization of medical marijuana will have on the duty to provide a reasonable accommodation under the Americans with Disabilities Act (ADA). For example, would an employer be required to permit an employee to use medical marijuana on his break to help alleviate his “debilitating medical condition”? For now, employers seem to be in the clear. Courts that have addressed this issue have unanimously held that employers have no obligation to accommodate medical marijuana use, possession, or impairment while at the workplace. This is because the ADA states that a person currently using illegal drugs is not a “qualified individual with a disability,” and therefore is not protected under the ADA. Even though medical marijuana is now legal in Florida, it is still illegal under federal law—and thus still technically illegal under the ADA.

Another concern employers may face is a potential disparate treatment discrimination claim for terminating or refusing to hire an employee because of his or her medical marijuana use. Again, because medical marijuana use is not covered under the ADA, employers should not be subject to an ADA discrimination claim so long as the adverse action is a result of the medical marijuana use and not because of any underlying disability.

An issue that will likely come before courts in the near future is whether employers are required to accommodate an employee’s off-duty medical marijuana use. For now, Florida employers are not required to make such an accommodation. However, under the right circumstances, it is possible that a court could require off-duty medical marijuana use as an accommodation. Florida employers be aware of the development of case law on this issue to ensure compliance with the law.

While the use of medical marijuana is not protected under the ADA, the employee’s status as a medical marijuana user may reveal the underlying condition for which the employee is being treated. If this condition constitutes a disability, the employer may have an obligation to engage in the interactive process with the employee and discuss reasonable accommodations other than medical marijuana use prior to taking adverse action. Additionally, where the ADA comes into play, so too may the Family Medical Leave Act (FMLA) (for employers covered by the FMLA). Thus, once the employer becomes aware of the employee’s underlying medical condition, it may need to consider whether FMLA leave is available and appropriate for the employee.

Drug Testing and Zero Tolerance Policies

In the majority of states, employers who utilize non-discriminatory zero tolerance drug policies can refuse to hire or terminate employees who fail a drug test for marijuana regardless of whether the marijuana was obtained legally. Unlike tests for alcohol, the tests available for marijuana do not always indicate that the employee is currently impaired at the time of testing. Marijuana can stay in an individual’s system for weeks. Therefore, an employee’s off-duty medical marijuana use could cause him or her to fail the employer’s drug test. To prevent this, several states offer some protection to medical marijuana users by requiring employers to prove evidence of impairment in addition to the positive drug test. Proving impairment can be a daunting task for employers as there is little guidance regarding what constitutes impairment from marijuana use.

Currently, Florida does not have an “impairment plus” regulation; therefore, employers can continue to maintain and enforce their zero tolerance drug policies. However, if Florida eventually enacts such a regulation, employers will need to provide comprehensive training to their managers regarding how to detect signs of impairment, take witness statements, and perform other measures that accurately document the situation.

Safety Concerns

Employers must keep in mind the safety concerns associated with employees engaged in the medical use of marijuana. The Occupational Safety and Health Administration Act requires employers to maintain a place of employment “free from recognized hazards.” Further, the Department of Transportation and other federal agencies explicitly prohibit marijuana use for safety-sensitive employees. The Drug-Free Workplace Act also applies to some federal contractors and requires good faith efforts to maintain a drug free workplace. Employers who employ individuals in safety-sensitive positions should consider these safety laws, the risks of a workplace accident, and other safety concerns before deciding how they are going to handle employee use of medical marijuana.

Employers’ Bottom Line

For now, not much changes for Florida employers as a result of the legalization of medical marijuana. Employers do not need to allow any sort of medical marijuana use as a reasonable accommodation to their employees. Nevertheless, employers should still be wary when an issue with medical marijuana arises because once they become aware of an employee’s underlying medical condition, they may be obligated to engage in the interactive process and provide some other type of reasonable accommodation or leave. Employers who choose to continue to maintain zero tolerance drug policies should communicate to their employees that any marijuana use—including off-duty, legal use—can subject them to adverse action including termination. Employers should also be prepared to revisit and revise these policies once the regulations are published, which will likely provide more guidance to employers. Although Amendment 2 takes effect January 3, 2017, the Department of Health is not required to issue regulations for six month after that. We will continue to keep you informed as more information regarding the enforcement of this new law become available.