Florida HR Considerations Marijuana at Work
Florida Employers should be aware of recent developments in marijuana use. First, a recent court decision (which is currently on appeal) stated that the Florida Civil Rights Act requires employers to make reasonable accommodations for off duty medical marijuana use. In Giambrone, v. Hillsborough County, (Fla. Ct. December 10, 2024), an employee who worked as an Emergency Medical Technologist (EMT) for Hillsborough County tested positive for marijuana after a random drug testing. According to the applicable collective bargaining contract and the County’s Drug Free Workplace Policy, the employee presented a valid medical cannabis card to his employer and testing doctor. The County placed the employee on an administrative leave without pay. The County admitted in court that there were no allegations that the employee had used marijuana while on duty or that his performance was affected by his off-duty marijuana usage. The court determined that, while the Florida Constitution and Florida Statutes legalizing medical cannabis do not require accommodations for on-site use, they do require employers to accommodate a qualified patient’s offsite use. There was no dispute about whether the employee met the criteria for a qualified patient. He suffers from anxiety and PTSD as well as insomnia, which “substantially limit one or more major life activities on a day-to-day basis” when he’s not properly medicated. The court found that the employee was protected by the FCRA, and the County had violated the law in failing to provide a reasonable accommodation. The court was not convinced by the County’s argument, that marijuana is illegal under federal law. It found it important that the employee’s EMT licence was governed by Florida state law, and that under the collective bargaining contract, the employee had the right to report the use of prescription medication authorized under federal or Florida law to explain positive results in drug tests. The November 2024 general elections failed to generate enough support for a similar measure. However, the new initiative has several updates that address previous criticisms. For example, it makes clear that smoking or vaping in public places will be prohibited.
In view of the recent developments in marijuana, including employee protections for marijuana use, Florida employers may want to review their drug-free workplace policy and procedures.
