Pubdate: Sun, 18 May 2014
Source: Tampa Tribune (FL)
Copyright: 2014 The Tribune Co.
Contact: http://tbo.com/list/news-opinion-letters/submit/
Website: http://tbo.com/
Details: http://www.mapinc.org/media/446
Authors: Sarah P.L. Reiner And Jason S. Cetel
Note: Sarah P.L. Reiner is a shareholder in the law firm 
GrayRobinson's Orlando office, where she represents employers and 
management in employment-related actions at the agency, state, and 
federal levels, and counsels businesses on developing employment 
policies. Jason S. Cetel is a regulatory compliance attorney in 
GrayRobinson's Tampa office, where he helps companies navigate the 
complex laws governing alcohol beverages and other regulated products.
Page: V1

HIGHLY UNCERTAIN TIMES

If Florida Voters OK Medical Pot, Businesses Will Face Complex Legal Issues

This fall, Florida voters will have the ability to legalize medical 
marijuana. The legal impact on employers will be significant.

The latest Quinnipiac University poll, released May 5, found 88 
percent of Florida voters support allowing adults to legally use 
marijuana for medical purposes. In light of that strong support, the 
proposed amendment to Florida's Constitution seems certain to 
succeed. If it does, employers may find themselves questioning how 
best to deal with issues and questions related to employee use of 
medical marijuana.

'The Use of Medical Marijuana for Certain Medical Conditions,' or 
Amendment 2, would legalize the use of marijuana to treat certain 
debilitating medical conditions when recommended by a physician. The 
amendment also would establish 'Medical Marijuana Treatment Centers' 
that would be licensed to cultivate, process, sell, distribute and 
dispense marijuana to qualifying patients or their caregivers.

Even if the amendment passes, it is important to understand that 
marijuana would remain a federally banned controlled substance; its 
use would continue to be a federal crime, even if a user complies 
with state law. This variance between state and federal law would 
complicate and multiply the questions facing Florida's employers: 
Does the company need to change its drug-testing policy or its safety policies?

Will it impact insurance coverage and workers' compensation?

How does this factor into hiring and termination decisions?

Do employees who have valid qualifying patient identification cards 
need special accommodations?

Although the Florida Legislature passed the Compassionate Medical 
Cannabis Act of 2014 on May 2, and Gov. Rick Scott said he intends to 
sign it, enactment is unlikely to provide employers with the answers 
they seek. The CMCA is a low-THC cannabis bill that authorizes 
physicians to recommend cannabis with high concentrations of CBD 
('cannabidiol') to treat intractable epileptic conditions, so it does 
not address the use of medical marijuana in the workplace.

For guidance, we look outside Florida. Medical marijuana is legal in 
nearly half the country. State laws enacted thus far vary, and while 
some address employment concerns, others do not in their approach to 
the workplace.

For example, Arizona's medical marijuana law says employers may not 
discriminate against a qualifying patient with respect to the terms 
and conditions of employment (unless the employer would experience 
the loss of a monetary or licensing benefit provided by the federal 
government). Florida's Amendment 2 does not have a similar provision; 
in fact, one of the amendment's express 'limitations' is that it does 
not 'require any accommodation of any on-site medical use of 
marijuana in any place of .. employment ...' Despite this language, 
Florida employers should not consider the issue resolved. The 
inclusion of 'on-site' implies that 'off-site' use (i.e., after work 
or 'off-the-clock' use) could be protected. If this is the case, 
under Florida law and, in particular, the Florida Civil Rights Act, 
employers may be required to allow employees who are also 'qualified 
patients' to use medical marijuana as a reasonable means of 
accommodating their 'debilitating medical condition.' Of course, the 
issue of hardship to the employer, particularly where federal law and 
safety issues are a concern, will need to be addressed.

This brings us again to the inherent conflict between federal and 
state law regarding the use of medical marijuana. Similar to the 
state's civil rights act, the federal Americans with Disabilities Act 
prohibits discrimination against those who are disabled or perceived 
as disabled, and further requires (under most circumstances) that 
employers provide reasonable accommodations allowing the individual 
to perform his or her job. However, the ADA does not protect users of 
illegal drugs, and marijuana is illegal under federal law.

The Florida Department of Health, which is charged with issuing 
regulations related to the proposed Florida amendment, may provide 
some guidance, but it is more likely that employment issues will 
remain largely unresolved, and that this will be a heavily litigated 
area of the law.

It will be interesting to see what state and federal courts do with 
these cases.

In the meantime, employers should review their policies and 
procedures with legal counsel and communicate with their insurers in 
order to be prepared to address workplace issues related to the 
legalization of medical marijuana.

Although courts in other states have held that employers can impose 
and enforce their own workplace policies and procedures, and some 
courts have dismissed wrongful discharge claims by employees 
authorized to use medical marijuana, it remains to be seen whether 
Florida employers will be treated similarly.
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MAP posted-by: Jay Bergstrom