Medical Marijuana in the Workplace: What’s Next?

In 2016, Florida voters soundly passed Amendment 2, Florida’s medical marijuana law, with more than 71 percent of the vote.  Since then, two bills have been passed implementing the law, there was one high-profile lawsuit targeting the legislature’s initial ban on smoking medical marijuana, and the Office of Medical Marijuana Use was created as part of Florida’s Department of Health.  

Where Are We Now?

Only “qualified patients” are entitled to use medical marijuana, which requires certification by a physician of a debilitating medical condition:  cancer, epilepsy, glaucoma, HIV, AIDS, PTSD, ALS, Crohn’s disease, Parkinson’s disease, multiple sclerosis, other medical conditions “of the same kind or class as or comparable” to the ones specifically identified, a terminal condition, and chronic nonmalignant pain.

Florida’s law specifically provides that no employment accommodations are required for any on-site medical marijuana use.  Thus, an employee can use medical marijuana on-site only if permitted by the employer.  Further, in order to qualify for a five percent discount on worker’s compensation premiums, employers are required to comply with the Drug Free Workplace Act, which demands a zero tolerance of illegal drug use (including marijuana, which is still illegal under federal law).

According to a June 21, 2019 report from Florida’s Office of Medical Marijuana Use, there have been 311,443 total patients in Florida who have been issued a medical marijuana card (more than double the number of total patients from the year before).  This roughly translates to about one in every 68 people in Florida having been issued a medical marijuana card.  

Where Are We Going?

Based on trends in other states and changing attitudes towards marijuana usage generally, it would not be surprising if, over time, Florida’s medical marijuana laws expand and evolve.  Here are a few things we may see in the employment context:

• Workers compensation. As noted above, many employers implement a drug-free workplace policy to receive a discount on their worker’s compensation insurance.  Florida’s medical marijuana law does not affect an employer’s ability to “establish, continue, or enforce” such a policy.  Consequently, employers who enforce a drug-free workplace policy may lawfully prohibit employees taking medical marijuana from work.  Additionally, medical marijuana is not reimbursable under workers compensation claims at this time.  Moving forward, however, workers compensation may change as medical marijuana becomes more accepted.  Some carriers have shown a willingness to reimburse for medical marijuana, and courts in some other states have required it.
• Accommodations for medical marijuana. Marijuana (including medical marijuana) remains a schedule 1 narcotic and thus illegal under the federal Controlled Substances Act.  Additionally, Florida’s medical marijuana law does not require employers to accommodate employees’ use of medical marijuana.  Early court decisions in states other than Florida have sided with employers on this issue, but there are some more recent cases that are more employee-friendly.  Indeed, there are some states that have written employee protections into their marijuana legalization statutes.  
• Less drug testing.  Many employers in Florida have stopped testing job applicants for evidence of marijuana usage.  This is because they have had trouble recruiting and hiring quality employees when they are forced to reject a significant slice of the population who uses medical or recreational marijuana.  Although we can expect employers to continue broad drug testing for employees who perform high-risk or safety-conscious jobs, the movement is to eliminate testing for marijuana usage for other, low-risk occupations.
• Recreational usage of marijuana.  To date, there are 11 states plus the District of Columbia which have adopted laws legalizing marijuana for recreational use.  A Pew Research Center survey from 2018 found that 62 percent of Americans believe that marijuana should be legalized – this is double what it was in 2000 (www.pewresearch.org/fact-tank/2018/10/08/americans-support-marijuana-legalization/)  .  Thus, the trend certainly is for legalization of marijuana for all uses – medical and recreational.  It is not a stretch to believe that Florida will eventually follow this trend.  

Tips for Employers

Employers should give real thought to their businesses, the type of work the employees do, and the risks of employee use of medical marijuana, and then determine whether to limit or prohibit medical marijuana in their drug-free workplace policies.  The discount on worker’s compensation premiums is a powerful incentive for a zero-tolerance policy, but it may be worth giving up that discount in order to attract a larger number of qualified employees.  Talking with an employment attorney about these issues can be a worthwhile investment, as an attorney can help to draft a policy that is specific to the employer’s needs and ensure that the policy complies with any changes in federal or state laws pertaining to medical marijuana.