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Friday, April 21, 2017

A BLUNT REALITY - FLORIDA EMPLOYERS BRACE THEMSELVES FOR THE IMPACT OF MEDICAL MARIJUANA: ARE YOU DAZED AND CONFUSED?









Winning an impressive 71% of the popular vote, on November 8, 2016, voters approved the Florida Medical Marijuana Legislative Initiative, also known as Amendment 2. Amendment 2, which went into effect on January 3, 2017, rewrote Florida’s constitution to allow for the medical use of marijuana for individuals with certain debilitating medical conditions. Amendment 2 defines these debilitating medical conditions as follows:

cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn's disease, Parkinson's disease, multiple sclerosis, or other debilitating medical conditions of the same kind or class as or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.

Amendment 2 did not legalize the recreational use of marijuana.

Amendment 2 is not Florida’s first law concerning the medical use of marijuana; Florida previously enacted the Compassionate Medical Cannabis Act of 2014, which became effective on January 1, 2015. This law only permitted qualified patients with epilepsy, seizure disorders or certain types of cancer use low-tetrahydrocannabinol cannabis (a non-euphoric strain of cannabis). The law was later expanded to allow terminally ill patients to use medical marijuana.

            One of the major purposes of Amendment 2 was to broaden the scope of patients who could use marijuana for medicinal purposes. Under Amendment 2, a “qualifying patient,” is described as a person who: (1) has been diagnosed with a debilitating medical condition (as defined above), (2) has a physician certification, and (3) has a valid qualifying patient identification card. Using the “best available evidence,” the Department of Health (“DOH”) has been tasked with creating the regulations which will define the amount of marijuana appropriate for a qualifying patient’s medical use.

            If you are an employer in Florida, you need to be prepared for the likely event that one of your employees becomes a qualified patient under Amendment 2 and user of medical marijuana. Although the rules and regulations surrounding Amendment 2 are still in their infancy, Amendment 2 makes clear that an employer is not required to accommodate marijuana use in the workplace—regardless of whether the marijuana is recreational or for medical use. Amendment 2 specifically provides that: “Nothing in this section shall require any accommodation of any on-site medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place.” Irrespective of what stance your business takes on the use of medical marijuana, it is essential that your policy be clear, thorough, and made known to your employees.

What if you are a covered employer under the Americans with Disabilities Act (“ADA”)? Generally speaking, under the ADA a covered employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee, so long as the accommodation would not impose an “undue hardship” on the employer’s business. This is not, however, the case with medical marijuana under Amendment 2. Amendment 2 does not create an affirmative duty for employers to provide a reasonable accommodation for medical marijuana. Moreover, federal courts in other states with laws similar to Amendment 2 have held that, since medical marijuana is still illegal under federal law, employers should not be forced to accommodate it.

Importantly for our clients in the construction industry, Amendment 2 specifically prohibits employees from operating a vehicle, aircraft, train or boat while under the influence of marijuana. This note coincides with your other work environment safety obligations, like those you have to the Occupational Safety and Health Administration (“OSHA”).

You might be asking yourself at this point, “What happens when my employee uses medical marijuana at home, but shows up to work still under the influence?” Because there is no definitive resolution in Florida as of yet, we again look to our sister states for answers. Federal courts in several other states with comparable laws have consistently upheld an employer’s right to enforce a nondiscriminatory zero-tolerance policy. The reason for this is, of course, that marijuana is still illegal under federal law.

The DOH is still in the process of creating the rules for how Amendment 2 will be implemented; they will have until June 3, 2017, to do so. Until then, if you have any questions on crafting your company policy with respect to employees who are or likely to become registered medical marijuana users, please contact our office. Because the law is still developing in Florida, we recommend that you also speak to counsel prior to disciplining an employee for violating company policy on medical marijuana. Finally, if you are a multistate employer, you need to make sure that your policies are in line in each state.