By Claire B. Carter, Esq., Associate

Pursuant to a constitutional amendment passed during the general election in November 2016, and the subsequently enacted Section 381.986, Florida Statutes, Florida now allows medical marijuana use to treat certain medical conditions. This poses an issue for Florida employers, as marijuana is still illegal under federal law. However, the language of Florida’s medical marijuana statute specifically states that an employer is allowed to “establish, continue, or enforce a drug-free workplace program or policy” and that an employer is not required to “accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana.” The statute explicitly states that it “does not create a cause of action against an employer for wrongful discharge or discrimination” based on the employee’s marijuana use. Fla. Stat. 381.986(15).

Because Florida’s medical marijuana statute is so new, there is a lack of case law in Florida interpreting it. Many courts in states that have legalized marijuana have rejected lawsuits challenging an employer’s decision to not hire a potential employee or fire a current employee based on marijuana use, but a recent case out of a federal court in Connecticut sided with a potential employee who was denied employment because she tested positive for medical marijuana. The court in Noffsinger v. SSC Niantic Operating Co. LLC dba Bride Brook Nursing & Rehabilitation Center, 2018 WL 4224075 (D. Conn. Sept. 5, 2018) found that refusing to hire the potential employee for using medical marijuana violated Connecticut state law which allows the use of medical marijuana.

At this time, it appears that because Florida’s medical marijuana statute disallows a cause of action, an employer in Florida is not required to accommodate an employee’s marijuana use. However, employers in Florida should be aware of Florida’s marijuana laws and any related case law, and should seek advice from an attorney prior to refusing to hire a potential employee or firing an employee based on a positive marijuana test. As cases on this topic are decided, employers should review their policies regarding employer substance use to ensure compliance with Florida law. We will continue to provide updates on Florida marijuana case law impacting Florida employers.

 

© 2018 Saxon Gilmore. Saxon Gilmore publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information and educational purposes only, and should not be relied on as if it were advice about a particular fact situation. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship with Saxon Gilmore. This publication may not be quoted or referred to in any other publication or proceeding without the prior written consent of the firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our Contact form via the link below. This site may contain hypertext links to information created and maintained by other entities. Saxon Gilmore does not control or guarantee the accuracy or completeness of this outside information, nor is the inclusion of a link to be intended as an endorsement of those outside sites.