Medical Marijuana’s Effect on Employment Law: The Highs, the Lows, and the Unanswered Questions

A big company is being sued by some workers for not paying them properly. The workers believe the company broke the law. They hired a lawyer to help them with the case. Florida’s Amendment 2 recently passed, allowing the use of medical marijuana for certain medical conditions. This raises questions about who can use it, how much THC is allowed, and how local laws will affect distribution. The state legislature is still working on specific rules, but for now, the qualifying conditions are things like cancer, epilepsy, and PTSD. The law also leaves room for other conditions to be added in the future. Basically, we can’t say for sure what specific diseases or conditions will qualify as “other debilitating medical conditions” for medical marijuana in Florida. But, we can get an idea by looking at other states with similar laws. In Colorado, it includes things like severe pain, seizures, and muscle spasms. In Washington, it’s even broader, including things like nausea, vomiting, and appetite loss. Based on this, it’s likely that Florida’s law will cover similar symptoms. The Americans with Disabilities Act (ADA) prohibits employers with 15 or more employees from discriminating against employees with disabilities. If an employee can still do their job with a few reasonable adjustments, the employer has to provide those adjustments. However, the ADA doesn’t protect employees who are currently using illegal drugs, like marijuana, because it’s illegal under federal law. The federal government doesn’t usually enforce drug laws against people who use medical marijuana in states where it’s legal. But this doesn’t mean that states have to allow medical marijuana. The government’s decision could change in the future. Some states have laws saying that employers have to accommodate medical marijuana users, but not all states do. It’s important to understand these different viewpoints in order to understand Florida’s medical marijuana law. State laws regarding medical marijuana do not require employers to accommodate employees who use medical marijuana, because it is still illegal under federal law. Even if a doctor prescribes it, the federal law takes precedence. This means that even if it’s legal in Oregon, for example, an employer doesn’t have to allow an employee to use medical marijuana. Some states like New York, Arizona, Minnesota, and Illinois have laws that say employers have to let employees use medical marijuana. This means that if an employee has a medical marijuana card, their employer has to make changes to their job to accommodate them. But there are still some reasons an employer might not have to do this, like if it would be really hard for them or if the employee’s job involves things like driving or serving customers. In states with medical marijuana laws, courts usually don’t require employers to accommodate employees who use medical marijuana. Even if the law doesn’t specifically say that employers don’t have to accommodate, courts still interpret it that way. In California, a court ruled that the state’s medical marijuana law doesn’t make employers accommodate medical marijuana use. Similarly, in Florida, the law says that employers don’t have to accommodate employees who use medical marijuana. The amendment to the Florida medical marijuana law doesn’t say if employers have to let employees use medical marijuana off-site or if they can drug test job candidates. The courts will probably look at how similar laws in other states have been interpreted. It’s likely that Florida courts will decide that employers don’t have to accommodate off-site medical marijuana use. The wording of the law should make things clearer. But the highest courts in the US haven’t decided if employers have to accommodate medical marijuana use. Employers should make their policies flexible and be ready to defend against requests for accommodation if marijuana laws change. The Family Medical Leave Act (FMLA) allows employees to take up to 12 weeks of unpaid, protected leave for serious health conditions. This can include planned medical treatment or when the employee is unable to work due to the condition. If an employee also uses medical marijuana for their condition, there may be conflicts between workplace and state policies. For example, if an employee tests positive for marijuana after taking FMLA leave for a serious health condition, the employer may have the right to terminate the employee for violating the company’s drug policy, even though the employee was using medical marijuana lawfully under state law. If an employee with PTSD uses medical marijuana, their employer may need to give them time off work under the FMLA so they can use their treatment without being impaired on the job. This could create a problem for the employer because they have to make sure the employee is fit to work when they come back. The employer also has to consider the ADA and make sure they aren’t discriminating against the employee. It’s still unclear how these laws work together, so employers need to make sure they have policies in place to handle these situations. Employers have to have drug-free workplace policies. In some states, like Washington, using medical marijuana doesn’t protect you from being fired for violating the policy. In Florida, the Drug-Free Workplace Act gives employers a discount on workers’ comp if they have a drug-free policy. It’s not clear if using medical marijuana can be considered following a prescription under this law, so the courts will have to decide. Some states have laws that protect employees from being fired for doing legal activities outside of work. In Colorado, a man named Coats used medical marijuana, which was legal in the state, and got fired from his job when he tested positive for it. He tried to sue his employer, but the court said that because marijuana is still illegal under federal law, the state’s law couldn’t protect him. The Department of Health in Florida has proposed rules for medical marijuana that could limit who can get a prescription and how it can be prescribed. Some lawmakers are criticizing these rules and want a more comprehensive approach. The Florida Legislature will consider these rules during their 60-day session starting in March. For now, the impact of Florida’s medical marijuana law on employers is likely to be minimal, as court decisions tend to prioritize employer rights. This may only change if marijuana is no longer classified as a Schedule I drug. This is a column written by lawyers, Gregory Hearing and Michael Balducci, about labor and employment law. They discuss various laws and cases related to employment discrimination and drug testing. Gregory has a lot of experience in labor and employment law and is certified in this area. Michael is an associate at the firm. Hope this helps! The Florida Bar wants its members to understand the importance of doing their job well, serving the public, and always trying to make the legal system better.

Source: https://www.floridabar.org/the-florida-bar-journal/medical-marijuanas-effect-on-employment-law-the-highs-the-lows-and-the-unanswered-questions/