On June 16, GovRick Scott signed the Compassionate Medical Cannabis Act of 2014 into law. This act, which takes effect Jan. 1, legalizes a low-level cannabinoid commonly known as Charlotte’s Web. It was passed in large part because of the heart-wrenching stories of children suffering from multiple seizures who obtain relief from Charlotte’s Web. The act states that Charlotte’s Web can be used for medical patients suffering from cancer or from other medical conditions that cause chronic seizures.
While Charlotte’s Web is no doubt a significant step for Floridians seeking relief for conditions causing chronic seizures, Florida’s bigger medical marijuana story will play out when voters decide on the Florida Right to Marijuana Initiative, commonly known as Amendment 2, which will be on the ballot Nov. 4. If passed by 60 percent of the voters or more, the initiative will amend Florida’s Constitution to guarantee Floridians much broader access to medical marijuana. The law will have a significantly expanded definition of what is an appropriate use for medical marijuana. As such, the Florida Department of Health would license growers, dispensaries, users and personal caregivers, who would presumably assist others such as the elderly or disabled. Of particular interest to Florida employers, Amendment 2 states that accommodations for medical marijuana use are not required in any place of education or employment. Furthermore, health insurers will not be required to pay for medical marijuana.
What should Florida employers do if it passes? How will it impact business operations? Employers who have contemplated legalization of medical marijuana are undoubtedly concerned about conflicting obligations under federal, state and even county ordinances, such as the Miami-Dade Human Rights Ordinance, which requires employers to make “reasonable accommodations” to employees’ with disabilities.
Additionally, many employers require preemployment or post-accident drug tests. In fact, Florida employers that follow state guidelines for a drug-free workplace are incentivized in the form of reduced workers’ compensation insurance premiums to conduct drug testing. Employers should be aware that passage of Amendment 2 will not repeal or restrict these Drug-Free Workplace incentives.
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If Florida legalizes medical marijuana, as expected, it is important for employers to remember that regardless of what any state law says, marijuana is still illegal in the eyes of the federal government, and is still a Schedule 1 narcotic — the same as heroin and cocaine. Thus any employer whose business is subject to federal regulation or licensure, such as those in the transportation industry, must continue to remain in full compliance with the laws that allow them to stay in business.
Additionally, there is nothing in Amendment 2 that will force employers to allow workers to come to the job under the influence of marijuana. That said, unlike a blood alcohol test, for example, there are no easy tests or objective standards to measure current marijuana impairment. Accordingly, employers will have to train managers to be vigilant and use observation skills to guard against impaired users coming to work.
If Amendment 2 passes, employers will invariably face requests from employees seeking a reasonable accommodation that allows them to — despite a company’s drug-free workplace policies — use medically prescribed marijuana away from work because they are treating a claimed disability. As noted above, there is nothing in Amendment 2 that will require employers to accede to such requests. However, employers that do not grant such an accommodation must be very clear that their decisions are based upon their desire to maintain a drug-free workplace, and are in no way due to the underlying medical condition or disability for which the medical marijuana is prescribed. To that end, if the employer previously “looked the other way” when employees were known to engage in recreational marijuana use, they may be hard-pressed to clamp down on medical use.
Passage of Amendment 2 will present a host of challenges to human resources managers’ decision-making. All business managers should take the time now to study the nuances of Amendment 2 and if it passes, should stay abreast of what will be a rapidly evolving area of business challenges.
Mark J. Neuberger and Larry S. Perlman are attorneys who represent management in the labor and employment practice group of Foley & Lardner LLP in downtown Miami. They may be reached at firstname.lastname@example.org or email@example.com.