Catalina M. Avalos, director (left) and Stephanie C. Mazzola, associate (right) of Tripp Scott, in Fort Lauderdale.

In November 2016, Florida voters legalized the use of medical marijuana for individuals with certain “debilitating medical conditions,” such as HIV or AIDS, PTSD and cancer, via their vote to approve Amendment 2 to the state constitution. However, marijuana, medicinal or otherwise, continues to be classified as a Schedule 1 controlled substance under federal law, i.e., an illegal substance. This dichotomy leaves Florida employers in a grey area with respect to creation of workplace policies surrounding use of medical marijuana.

Prior to Amendment 2, some employers adopted Florida's Drug-Free Workplace Program under Fla. Stat. 440.102—which allows employers to receive discounts on its workers' compensation premiums—while others adopted their own version of a drug free policy prohibiting employees from reporting to work under the influence of alcohol, illegal drugs or substances and also prohibiting the consumption of alcoholic beverages or illegal drugs on company premises or while performing company business.

While Amendment 2 provided guidance as to who is eligible to receive medical marijuana, it provided next to no direction for employers on how to handle employees who are legally using medical marijuana in Florida.  However, on June 23, 2017, Florida Statute 381.986 was signed into law providing some clarity to employers with respect to an employee's use of medical marijuana. Specifically, Florida law does not:

• Permit individuals to use medical marijuana at their place of employment, unless permitted by the employer.
• Limit the ability of an employer to enforce a drug-free workplace program or policy.
• Require employers to accommodate the medical use of marijuana in the workplace.
• Require employers to accommodate any employee working while under the influence of marijuana.
• Permit employees to sue an employer for wrongful discharge or discrimination related to the employee's medical marijuana use.

Although Florida Statute Section 381.986 provides protection to Florida employers and does not create a cause of action for wrongful discharge in connection with medical marijuana use, additional considerations surrounding the use of medical marijuana in the workplace involve the FMLA and ADA, specifically how medical marijuana use affects an employer's reasonable accommodations obligations. Section 381.986 eliminates the argument that an employer is required to offer an accommodation for on-site medical marijuana consumption at the workplace, but fails to address off-site “accommodations” of medical marijuana use, which will likely result in litigation. A few recent cases around the nation confirm that, prior to an employer taking adverse employment action due to an employee's use of medical marijuana, the employer should look at each case on a case by case basis to minimize exposure under the ADA, FMLA or other employment laws.

For example, in Barbuto v. Advantage Sales and Marketing, 78 N.E. 3d 37 (2017), the court considered whether an employer could fire an employee for marijuana use when the use was to treat a disability. During hiring interviews, Barbuto told Advantage Sales that she used marijuana to treat a disabling disease, but was hired nonetheless. She was later fired when she tested positive for marijuana. Although, the court  held that the employee did not have an implied private right of action under that state's medical marijuana law, it remanded the case back to the trial court recommending that consideration be given to a reasonable accommodation of Barbuto's disability. Similarly, in Coles v. Harris Teeter, 217 F. Supp. 3d 185 (D.D.C. 2016), an employee who suffered from glaucoma and had a valid prescription for medical marijuana was terminated by the employer after failing a drug test for violating employer's substance abuse policy. Coles brought an action against the employer alleging wrongful termination under common law and disability discrimination in violation of District of Columbia Human Rights Act (DCHRA). The district court found that there was no cause of action for wrongful termination, but that the employee had sufficiently alleged termination on the basis of his disability to state a claim under the DCHRA.

With this in mind, employers whose employee handbooks do not address the use of medical marijuana should consider whether or not to revise their handbooks to create specific policies stating their position as to medical marijuana, and incorporate a non-discriminatory “zero-tolerance” policy which could protect the employer when making hiring or firing decisions in connection with employees testing positive for marijuana—regardless of whether the marijuana is properly being used for medical purposes. An employer is not legally required to prohibit use of medical marijuana in the workplace in Florida, but it can elect to do so and avail itself of the current protections afforded by Florida law. Employers should also address medical marijuana use while not at work through carefully crafted written workplace and drug testing policies with the help of counsel to avoid any potential litigation landmines.

Catalina Avalos is a director and Stephanie Mazzola is an associate with Tripp Scott in Fort Lauderdale. Both focus on labor and employment issues.