Executive Summary: Late last week Florida Governor Rick Scott signed into law a bill intended to implement provisions of the medical marijuana constitutional amendment that was approved by Florida voters last November (Amendment 2). The new law addresses and preserves important employer rights regarding drug-free workplace policies generally, but it leaves unanswered a number of significant questions that may ultimately end up needing to be resolved by courts. Although the new law expressly provides that it does not create a private cause of action against employers for wrongful discharge or discrimination, and does not require an employer to accommodate the use of medical marijuana at work, it does not squarely address the extent of an employer’s obligation to accommodate the use of medical marijuana outside the workplace. Thus far cases decided in other states with similar medical marijuana statutes or constitutional amendments have upheld an employer’s right to continue to apply uniform “zero tolerance” drug free workplace policies that prohibit the use of marijuana under any circumstances at any time. While these court decisions in other jurisdictions should provide Florida employers some comfort, how a Florida court would resolve a similar legal challenge remains to be seen, particularly in a case that also implicates the Americans with Disabilities Act (ADA), the Florida Civil Rights Act (FCRA) and/or the Family and Medical Leave Act (FMLA).

Signing of Florida Senate Bill 8-A into Law and Evolution of Medical Marijuana in Florida

On June 23, 2017, Governor Rick Scott signed into law Senate Bill 8-A, which implemented Amendment 2, the “Florida Medical Marijuana Legislation Initiative.” Amendment 2 followed the enactment of Senate Bill 1030 in 2014, which created the “Compassionate Medical Cannabis Act of 2014,” now codified as Florida Statute §381.986. Among other things, §381.986 originally legalized low-THC cannabis for medical use by qualified patients who suffered from cancer or certain conditions that caused chronic seizures or severe and persistent muscle spasms.

Consistent with Amendment 2, the new law amends §381.986 to provide for the medical use of stronger strains of marijuana, although it excludes, somewhat controversially, marijuana in forms used for smoking (other than for vaping). It also significantly expands the numbers and kinds of “debilitating medical conditions” for which medical marijuana legally may be used, including cancer, epilepsy, glaucoma, the human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn's disease, Parkinson's disease, and multiple sclerosis. The law also provides for a “catch-all” category for other conditions “of the same kind or class as or comparable” to those enumerated, if a physician believes that the medical use of marijuana would “likely outweigh the potential health risks for the patient.”

In addition, the new law also incorporates a provision into §381.986 that provides limited guidance on the legal impact of medical marijuana on the workplace, including providing that the law does not limit the ability of an employer in Florida to maintain a drug-free workplace program or policy, or provide a basis for individuals to bring claims of wrongful discharge or discrimination against an employer. Specifically, Subsection 15 of the new law provides:

Applicability.— This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy. This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. This section does not create a cause of action against an employer for wrongful discharge or discrimination. Marijuana, as defined in this section, is not reimbursable under chapter 440 [the “Workers’ Compensation Law”].

The Law Does Not Address an Employers’ Potential Duty to Accommodate Medical Marijuana Use Off-Site or other Possible ADA/FCRA/FMLA Concerns

FordHarrison first analyzed the likely impact of the legalization of medical marijuana on Florida employers not long after the passage of Amendment 2, in our Alert “What Does Florida’s New Medical Marijuana Law Mean for Employers?” As noted in that Alert, the language of the amendment made clear that employers would not have an obligation to accommodate any on-site use of medical marijuana in the workplace as a result of the amendment’s passage. Similarly, as noted above, Subsection 15 of amended §381.986 expressly denies any duty to accommodate the use of medical marijuana in the workplace or an individual working while under the influence of medical marijuana. However, like Amendment 2, amended §381.986 does not expressly address whether employers may have to accommodate medical marijuana use by applicants or employees outside of the workplace, including as a result of any accommodation obligations arising under the ADA or FCRA.

While no Florida courts have yet had occasion to address this issue, in other jurisdictions with medical marijuana laws that are silent on the issue of accommodation of the use of medical marijuana outside of work, courts have consistently upheld an employer’s right to observe and enforce uniformly applied “zero tolerance” drug free workplace policies against applicants or employees who failed drug tests as a result of the use of medical marijuana. For example, in Roe v. TeleTech Customer Care Management (Colorado) LLC, 257 P.3d 586 (Wash. 2011), a medical marijuana user in Washington State sued her former employer for wrongful termination based on a “new hire” positive drug test. The plaintiff argued, among other things, that the legislature’s express denunciation of an employers’ duty to accommodate “any on-site medical use of marijuana in any place of employment” impliedly created a duty to accommodate such use off-site. The Washington Supreme Court disagreed, finding that “the statute’s explicit statement against an obligation to accommodate on-site use [did] not require reading into [the law] an implicit obligation to accommodate off-site medical marijuana use.” Should amended §381.986 face a similar challenge in the future, Florida courts may similarly decline to read into the statute an unexpressed obligation to accommodate off-site use, particularly in light of the statute’s express language stating it does not create a cause of action for wrongful discharge.

In our earlier Alert we also observed that because marijuana remains illegal under federal law, a user of medical marijuana seemingly would not satisfy the definition of a “qualified individual with a disability” under the ADA, as the ADA expressly excludes from coverage any employee or job applicant “who is currently engaging in the illegal use of drugs, when the [employer] acts on the basis of such use.” 42 U.S.C. §12114a. (The ADA in turn defines “illegal drugs” by reference to federal law (under the federal Controlled Substances Act), not state law.). Although courts generally have construed the FCRA in conformity with the ADA in most circumstances, the answer could be less clear under the FCRA, which has no analogous express provision tied to use of drugs that are illegal under federal law.

Employers must also keep in mind, however, that even though the ADA does not protect current use of medical marijuana or actions taken because of its use (such as terminations under a zero tolerance policy), the underlying condition (and/or disclosure of it to the employer) may still implicate and impose ADA and FCRA obligations, including an obligation to engage in the ADA interactive process with the employee and/or explore other accommodations independent of the use of medical marijuana. Similarly, the underlying condition for which medical marijuana is being used will likely be considered a “serious health condition” under the FMLA, in turn triggering certain rights for the eligible employee to take protected leaves of absence from work. Thus, employers need to consider the possible applicability of the FMLA when addressing an employee’s use of medical marijuana.

It remains to be seen how courts will interpret the provision in the new law that states the statute does not create a cause of action for wrongful discharge or discrimination when that provision is applied in a specific workplace scenario. Seemingly, so long as an employer can show that its employment decision is based solely upon an individual’s use of marijuana, and not on the medically authorized reason for the use, the provision in Subsection 15 would appear to provide a basis for arguing that any such lawsuit is barred by the statute. Again, however, only time will tell as this point.

Employers’ Bottom Line: Although amended §381.986 contains seemingly employer-friendly provisions, Florida employers still need to be cautious and aware in the coming weeks and months of open issues not addressed or clarified in the new law. For now, employers should review their current policies and practices to be sure they account for the fact that marijuana is treated differently under federal and state law, remain vigilant in monitoring developments in this area of the law, and consult with qualified legal counsel when encountering situations implicating the ADA, FCRA or FMLA and the authorized medical use of marijuana.