MEDICAL MARIJUANA & EMPLOYMENT

Protections for Employees Still Needed

Florida is an “at will” employment state, which means that you can be fired or demoted for any reason (or no reason at all), except those prohibited by state or federal law. This means that if you feel you have been wrongfully fired or demoted, you have no legal remedy unless you have been discriminated against based on your race, color, religion, national origin, gender, age, or disability, which is prohibited by both federal law and state law.

In 2016, Florida voters overwhelmingly passed Amendment 2 to the Florida Constitution legalizing medical marijuana. Unfortunately, Florida did not include any protections for employees that might be prescribed marijuana and subsequently fail a drug test.

If you’ve been qualified to use medical marijuana, you have likely been diagnosed with a “disability.” A disability under federal law is defined as “a physical or mental impairment that substantially limits one or more major life activities of such individual.”

Title I of the Americans with Disabilities Act prohibits discrimination against persons with disabilities and provides that employers are required to offer reasonable accommodations to those with disabilities. Since marijuana is still illegal on the federal level, use of medical marijuana would not be considered a “reasonable accommodation” under the ADA.

What about Florida law? The Florida Civil Rights Act prohibits discrimination against those with “handicaps”. Although Florida law does not specifically define what a “handicap” is, many courts have interpreted it to be consistent with the definition of “disability” under the ADA. This means that employers are required to offer reasonable accommodations to those with disabilities as well.

So what does this mean for medical marijuana patients? Currently, there is no clear answer, and it likely depends on the nature of your job. If you work for the federal government, your use of medical marijuana would not be protected. If you work for a private or state employer, and your use of medical marijuana prohibits you from being able to perform an “essential function” of your job despite being given reasonable accommodations, then you likely will not be protected. If, however, your use of medical marijuana would not impact any essential function, then you may have a claim against your employer under the Florida Civil Rights Act.*

In 2019, Congressman Charlie Crist introduced a bill that would prohibit discrimination against medical marijuana users. Unfortunately, the bill has stalled in the Senate.

Currently, 33 states have legalized medical marijuana and 11 states have legalized it for recreational use. It is likely that as use of marijuana and cannabis expands across the country, state and federal governments will be forced to address protections for employees.

*Disability discrimination claims under the Florida Civil Rights Act is a novel legal theory which our firm is actively exploring. If you feel you have been discriminated against based on your use of medical marijuana, contact our office for a free consultation at (813) 929-4231.